human rights & human welfare

a forum for works in progress

working paper no. 65

European Union accession to the European Convention on Human Rights: an institutional “marriage”

by Konstantinos G. Margaritis,

visiting PhD student, Department of Transnational Legal Studies VU University Amsterdam, Faculty of Law

(1 Jan.-1 Apr. 2011) konstantinos_margaritis@yahoo.com

Posted on 18 August 2011

http://www.du.edu/korbel/hrhw/workingpapers/2011/65-margaritis-2011.pdf

© Konstantinos G. Margaritis. All rights reserved.

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1

European Union accession to the European Convention on Human

Rights: an institutional “marriage”

I assert that this work is my own and that it infringes no copyrights, patents, or trademarks. I also

authorize HRHW Working Papers to post it on the internet.

Keywords: EU accession to ECHR, ECHR institutions, judicial relations among

members of ECHR, human rights in Europe

This research was conducted during a 3-month visitor’s programme at VU University

Amsterdam, Faculty of Law, Department of Transnational Legal Studies. I would like

to deeply thank all academic and administrative members of the Department for their

hospitality and assistance; special thanks to Dr. Galina Cornelisse for her valuable

guidance during those three months and her important feedback on this paper. Of

course every remaining error is exclusively my responsibility.

This one is humbly dedicated to my wonderful Bahar for her emotional support that

she always gives me.

Introduction

A possible accession of European Union (hereinafter: EU/the Union)1

1 The term “European Union” may not be the appropriate since the matter of accession started long before 1992 but is used for reasons of convenience.

to the

European Convention on Human Rights (ECHR/the Convention) has been discussed

in legal society for more than thirty years. The topic had widely opened after the 1979

Commission Memorandum where the major pros and cons were underlined and

practical problems were addressed. This discussion led to an official request to the

European Court of Justice (ECJ/the Court) in relation to the legality of such

accession; the outcome was included in opinion 2/94 that found such accession

incompatible with the European Community (EC/the Community) Treaty. However,

2

the whole argumentation regarding EU accession to ECHR had originated earlier, the

first approach of the sensitive issue of fundamental rights2

Technical problems arose from the other part as well. The ECHR was

constructed for States to participate in so the accession of an organization such as the

EU would demand significant amendments. A relevant proposal from the Council of

Europe’s point of view was manifested in the Steering Committee for Human Rights

(CDDH) Document DG-II 2002.

protection at an EU level

was directed by the ECJ that had envisaged the conceptual influence of the

Convention to the EU and developed the doctrine of Community protection of

fundamental rights.

With the enforcement of the Lisbon Treaty and the signature and ratification of

Protocol 14, technical problems seemed to have been put in some order; according to

article 6, para. 2 of the consolidated version of the Treaty of the European Union

(TEU): “the Union shall accede to the European Convention for the Protection of

Human Rights and Fundamental Freedoms” and according to the new article 59, para.

2 of the ECHR: “the European Union may accede to this Convention”.

But this is the easy part of the story. As included in article 6, para. 2 “such

accession shall not affect the Union's competences as defined in the Treaties”. This

provision specified in Protocol 8 of the Lisbon Treaty creates interpretational issues

regarding the EU accession to the Convention. In addition, the persistence of the pro-

Lisbon status of fundamental rights in article 6, para. 3 of the consolidated version of

the TEU which states that “fundamental rights, as guaranteed by the European

Convention for the Protection of Human Rights and Fundamental Freedoms … shall

constitute general principles of the Union's law” demonstrates the high position that

the ECHR enjoys within the EU legal system, but also raises questions for its

existence.

Furthermore, different perspectives derive from a possible accession of EU to

the ECHR. All EU member states will hold their present status as members of the

Convention and given the fact that one of the main tasks of the Union is to be able to

defend its legal acts in a possible case before the European Court of Human Rights

2 The concept of the notions of fundamental rights and human rights remains the same in this text.

3

(ECtHR/the Strasbourg Court),3

The aim of this paper is to understand and analyse the changes that a possible

accession to ECHR may bring to the system of fundamental rights protection in EU.

This will be achieved in an institutional perspective by firstly trying to identify the

final position of the ECHR in the EU legal order and later to define the formation of

the relations among the ECHR Member States and EU in view of the accession of the

latter in the Convention from a judicial standpoint.

the EU will unavoidably develop judicial relations

with them as well as with non-EU members within the legal umbrella of the ECHR.

Part one: The path to accession

1. The contribution of Luxembourg and Strasbourg: an overview

1.1 The ECJ principle of Community protection of fundamental rights

The protection of fundamental rights in Community level was not inaugurated

by any Community institution having legislative or executive power but rather had its

origins in the case-law as developed by the ECJ.4 The case of Stauder vs. City of Ulm5

gave the initiative, in 1969,6 where the Court clearly described “…fundamental

human rights enshrined in the general principles of community law and protected by

the court”7 whilst not much later, in 1970, the Court characterised fundamental rights’

guarantee “inherent” in Community Law and added that although the primary source

of their protection was the constitutional traditions of the Member States, this

protection must be ensured within the framework of the Community8

3 See the contributions of P. van Dijk, F. Jacobs, F. Benoit-Rohmer and O. De Schutter in the Report of the Committee on Legal Affairs and Human Rights regarding the accession of the EC/EU to the European Convention on Human Rights, Parliamentary Assembly Doc. 11533, 18 March 2008.

which has

developed its own legal system. Both cases expanded the concept of the European

legal order to include fundamental, human rights protection; in fact the Court

underlined its importance. However the only source of protection of fundamental

4 A. Jacobs, “The European Constitution. How it was created. What will change.”, Wolf Legal Publishers, 2005, p. 119. 5 Case C-29/69 Stauder vs. City of Ulm [1969] ECR 419. 6 However, in judgements of the 50’s and 60’s, the Court refused to take into account fundamental rights, see case C-1/58 Stork vs. High Authority [1958-9] ECR 41 and joint cases C-16/59, C-17/59, C-18/59 Ruhr vs. High Authority [1960] ECR 47. 7 Stauder, supra note 5, Grounds of judgment, para. 7. 8 Case C-11/70 Internationale Handelsgesellschaft [1970] ECR 1125, Grounds, para. 4.

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rights was the common constitutional traditions of the Member States because of the

absence of a concrete catalogue.

The Court found the chance to fill that gap in the Nold vs. Commission case9

where it not only again underlined that fundamental rights did indeed form an integral

part of community law as derived from the constitutional traditions of member states,

but mainly added that international treaties for the protection of human rights on

which member states have collaborated or of which they are signatories can supply an

additional source for human rights protection to the Community.10 Despite the

absence of any written law or Bill of Rights, at that time, within the EC Law, the ECJ,

case by case, was upholding the protection of fundamental rights by way of general

principles of Community Law, referring to common constitutional traditions and

international instruments in which the Member States were signatories in particular

the ECHR.11

A further step was taken in Rutili case

12 where the Court ruled that the Member

States kept the power to determine the concept of public policy according to their

national needs; however when this concept is used “as a justification for derogating

from the fundamental principles of equality of treatment and freedom of movement

for workers, be interpreted strictly, so that its scope cannot be determined unilaterally

by each Member State without being subject to control by the institutions of the

Community”13 and implicitly dictated that this power to limitations, granted to

Member States, is in a relation of lex specialis to the principle enshrined in articles 8,

9, 10, 11 and 2 of Protocol 4 of the ECHR.14

9 Case C-4/73 Nold vs. Commission [1974] ECR 491.

In some sense, the Court demonstrated

to Member States that their power within this specific issue shall be exercised under

the legal umbrella of the ECHR. For the first time the ECJ accepted the law of the

ECHR not simply as a guiding principle but in its substance, by referring to specific

articles and accepting their concept on an issue that was, at the very end, in control of

Community institutions.

10 Idem, Grounds, para. 13. 11 The particular significance of the ECHR may be found in later ECJ cases, for example case C-222/84 Johnson vs. Chief Constable of the RUC [1986] ECR 1651 and joint cases C-46/87 and C-227/88 Hoechst vs. Commission [1989] ECR 2859. 12 Case C-36/75 Rutili vs. French Minister of the Interior [1975] ECR 1219. 13 Idem, para. 27. 14 Idem, para. 32.

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Following the same line, the Court, in Hauer case,15

The approach that the ECJ started to embrace from Nold and after might be seen

in context with case-law of constitutional courts of specific Member States, the most

important of which came from Germany. In Solange I

once again heightened the

status of constitutional traditions common to Member States and that of international

treaties for human rights that Member States participate in as guidelines but should be

followed within the framework of the Community law. Nevertheless, the ECJ stated

that a possible infringement of human rights by a Community act could be judged in

the light of Community law itself, otherwise, if special criteria derived from the

legislation or constitutional law of a particular Member State were accepted, the unity

of the Community law and therefore the cohesion of the Community would be put in

danger. The Community’s autonomous legal order that was already established

needed a ground for further development of fundamental rights protection; this

ground was found in the common constitutional traditions and the international

human rights treaties. However, the interpretation of this ground and its elaboration

should be made only by taking into consideration the Community’s special

characteristics and needs.

16 the German Constitutional

Court ruled that, given the absence of a Community catalogue of fundamental rights,

it would be entitled to decide upon the validity of Community acts in the light of the

fundamental rights included in the German Constitution. The German Court pointed

out its competence to review Community secondary law regarding the compatibility

with fundamental rights as long as there was lack of a codified catalogue the

substance of which was reliably and unambiguously fixed for the future in the same

way as the substance of the Constitution,17 in other words that was equivalent to the

German Constitution. The difference was obvious a few years later (1986) in Solange

II.18 After the development of the doctrine of Community protection of fundamental

rights by the ECJ, the German Constitutional Court expressed its security on that issue

as long as the ECJ generally ensure an effective protection on Community level

against the sovereign powers of the Community.19

15 Case C-44/79 Liselotte Hauer vs. Land Rheinland-Pfalz [1979] ECR 3745, 3746, paras. 14-15.

Still, this security derived mainly

16 BVerfGE 31, 271. 17 P. Craig, G. De Burca, “EU Law. Texts, Cases and Materials”, Oxford University Press, 3rd edition, 2007, p. 358. 18 BVerfGE 73, 339. 19 D. H. Scheuing, “The Approach to European Law in German Jurisprudence”, German Law Journal, 5, 2004, pp. 707-708.

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from case-law and declarations of political nature; a fact that made the inclusion of a

concrete fundamental rights catalogue crucial.

The Court did not simply recognise the rights included in the ECHR as general

principles of EC law. Given the fact of non-existence of a fundamental rights

catalogue in EC, the Court, case by case, acknowledged the necessity to rule on

specific rights; besides economic rights that fell under the core objectives of the

Community, traditional civil rights (contained in the ECHR) were also recognized.20

Cases with reference to protection of economic and property rights include the

right to property,

21 the freedom to pursue a trade and the freedom to practice a

profession.22 Traditional civil rights that have gained Community protection include

respect for human dignity,23 right to fair trial and hearing,24 respect of privacy25 and

family life,26 freedom of expression,27 freedom of association,28 confidentiality.29

General principles that coact the protection of fundamental rights have also been

accepted by the ECJ case-law, such as the principle o non-discrimination,30 the

principle of equality31 and the principle of equal treatment.32

20 Tridimas classifies three categories of rights protected by the ECJ, economic and property rights, civil and political liberties and rights of defence. T. Tridimas, “The General Principles of EU Law”, Oxford University Press, 2nd edition, 2006, p. 307.

21 Hauer, supra note 15; case C-281/84 Zuckerfabrik Bedrung vs. the Council and the Commission [1987] ECR 84; joint cases C-248/95 and C-249/95 SAM. Schiffahrt and Stapf vs. Germany [1997] ECR I-4475. 22 Case C-240/83 Procureur de la Republique vs. ADBHU [1985] ECR 531; case C-306/93 SMW Winzersekt GmbH vs. Land Rheinland-Pfalz [1994] ECR I-5555; case C-183/95 Affish BV vs. Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I-4315, 280; case C-491/01 BAT and Imperial Tobacco [2002] ECR I-11453. 23 Case C-377/98 Kingdom of the Netherlands vs. European Parliament and Council of the European Union [2001] ECR I-7079; case C-36/02 Omega [2004] ECR I-09609, 14. 24 Case C-115/80 Demont vs. Commission [1981] ECR 3147; case C-66/90 Netherlands and Others vs. Commission [1990] ECR I-307; case C-135/92 Fiscano vs. Commission [1994] ECR I-2885; case C-17/98 Emesa Sugar (Free Zone) NV vs. Aruba [2000] ECR I-665; case C-3/00 Denmark vs. Commission [2003] ECR 2643. 25 Case C-136/79 National Panasonic vs. Commission [1980] ECR 2033; joint cases C-97/87to C-99/87 Dow Chemical Iberica and Others vs. Commission [1989] ECR 3165, 929. 26 Case C-249/86 Commission vs. Germany [1989] ECR 1263; case C-249/96 Lisa Jacqueline Grant vs. South-West Trains Ltd [1998] ECR I-621. 27 Case C-100/88 Oyone and Traore vs. Commission [1989] ECR 4285. Especially for the freedom of radio/TV case C-260/89 ERT [1991] ECR I-2925 and for the freedom of information case C-159/90 SPUC vs. Grogan [1991] ECR I-4685. 28 Case C-175/73 Union Syndicale Massa and Kortner vs. Council [1974] ECR 917; case C-415/93 Union Royale Belge des Societes de Football Association and Others vs. Bosman and Others [1995] ECR I-4921. 29 Case C-155/79 AM & S Europe Limited vs. Commission of the European Communities [1982] ECR 1575; case C-404/92P X vs. Commission [1994] ECR I-4737. 30 Case C-293/83 Gravier vs. City of Liege [1985] ECR 593, 615. 31 Case C-810/79 Peter Überschär vs. Bundesversicherungsanstalt für Angestellte [1980] ECR I-2747. 32 Case C-217/91 Kingdom of Spain vs. Commission of the European Communities [1993] ECR I-3923.

7

Therewithal, in recent cases the ECJ seemed to emphasise in traditional

fundamental rights over the economic norms that the EU conventionally promotes.

Distinctive examples are Schmidberger33 and Omega.34 Especially in the latter the

Court stated that “the protection of rights is a legitimate interest which, in principle,

justifies a restriction of the obligations imposed by Community law, even under a

fundamental freedom guaranteed by the Treaty such as the freedom to provide

services”.35 However, the Court repeated its position that fundamental rights are not

absolute,36 so in each case the restrictions (possibly) imposed to market freedoms in

favour of fundamental rights shall be necessary and proportionate.37

As a result to the above it could be observed that the ECJ had already led the

path to a possible accession of the EC/EU to the ECHR. In fact, the Court had created

a peculiar “catalogue” of certain fundamental rights in the sense of their recognition at

Community level; a catalogue that tended to include more and more rights in a case

by case style under the inspiration of the ECHR. More specifically, in many of the

cases, specific ECHR articles or ECtHR case-law

38

were used in way of guidance for

the ECJ.

1.2 Opinion 2/94; a burden for accession

Since a possible accession was not removed from the agenda,39 on 26 April

1994, the Council requested an opinion from the ECJ regarding the legality of the

Community accession to ECHR in accordance with the EC Treaty. The Court

delivered Opinion 2/9440

33 Case C-112/00 Schmidberger vs. Austria [2003] ECR I-5659.

where it concluded that in its form at that time, the

Community had no competence to accede the ECHR.

34 Case C-36/02 Omega [2004] ECR I-9609. 35 Idem, para. 35. 36 N. Turkuler Isiksel, “Fundamental Rights in the EU after Kadi and Al Bavakaat”, European Law Journal, 16, 2010, p. 574. 37 Schmidberger, supra note 33, para. 81; C. F. Sabel, O. Gerstenberg, “Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order”, European Law Journal, 16, 2010, p. 515. 38 Cases that implicitly follow the interpretation of the ECtHR regarding specific ECHR rights are case C-94/00 Roquette Freres [2002] ECR I-9011; case C-276/01 Steffensen [2003] ECR I-3735; case C-105/03 Pupino [2005] ECR I-5285. 39 Commission Communication SEC (90) 2087, final, 19 November 1990; Commission’s working document SEC (93) 1679, final, 26 October 1993. 40 Opinion 2/94 [1996] ECR I-1759. For an analysis on the opinion, see G. Gaja, “Opinion 2/94”, Common Market Law Review, 33, 1996, pp. 973-989.

8

The Community acts within the limits of the powers conferred upon it by the

Treaty; such powers are not necessarily the legal aftermath of a specific provision, but

may also be implied from them.41

The opinion as formulated came across a major institutional problem within the

EC/EU that could not be easily overlooked. The lack of legal basis within the Treaties

would prevent the materialization of any accession prospects because of lack of

Community competence. Under the application of the principle of conferred powers, a

possible accession would be interpreted as an overcome for the Community’s power

standards. On the other hand, it has been argued

So, the Court’s starting point was the absence of a

Treaty provision that conferred on the Community institutions any general power to

enact rules on human rights or to conclude relevant international conventions;

therefore article 235 TEC would be searched as a possible legal basis for accession.

Although pointing out that respect for human rights was a condition of the lawfulness

of Community acts, the Court stated that a possible accession to ECHR would entail

modification of constitutional nature for the system of protection of human rights in

the Community as the Community would have to fully integrate to the ECHR system.

That goes beyond the scope of article 235 TEC so a Treaty amendment was required,

according to the Court.

42 that even under opinion 2/94, the

EC/EU could develop a human rights policy. The protection of fundamental rights

still fell under the objectives of the Community that did not lack competence to

legislate therein.43

Article 235 TEC could be used as legal basis under the

prerequisites set by the Court in opinion 2/94. In other words, any policy in human

rights issues would be compatible with opinion 2/94 if it does not entail changes of

constitutional significance and lies within the fields of Community law. However the

strict position of the Court would demand a Treaty amendment for the accession idea

to be continued.

1.3 Principles of the ECtHR

41 For the doctrine of implied powers see P. Eechkhout, “External Relations of the European Union. Legal and Constitutional Foundations”, Oxford University Press, 2004, pp. 58-100. 42 J. H. H. Weiler, S. C. Fries, “A Human Rights Policy for the European Community and Union: The Question of Competences”, Harvard Jean Monnet Working Paper 4/99, pp. 16-25; P. Alston, J. H. H. Weiler, “An 'Ever Closer Union' in Need of a Human Rights Policy: The European Union and Human Rights”, Harvard Jean Monnet Working Paper 1/99, pp. 20-22. 43 For example article 19 TFEU.

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It is not far from reality that the ECtHR is the most “successful” supranational

court. With 47 countries being currently parties of the Convention which represent

more than 800 million people, the horizontal jurisdiction that the Strasbourg Court

embraces is extremely vast and therefore impossible to be functional in a purely

individualistic aspect. The ECtHR was not established to become a specialized “court

of appeals”, nor a “court of fourth instance”, but to give directions on the better

application of the principles and rights that the ECHR is meant to protect by the

member states, as a court specifically focused on human rights protection. In that

sense, the ECtHR delivers judgements that embody principal guidelines. Given the

fact that the Strasbourg Court is called to decide upon constitutional issues in so far

they concern human rights, it produces constitutional justice44

This approach was confirmed when the ECtHR referred to the Convention as “a

constitutional instrument of European public order”

where the individual

applications serve as “alerts” regarding non-compliance matters on behalf of member

states. A natural consequence is that the ECtHR has developed, through cases,

principles to establish the Convention in the European public order.

45 that guarantees “not rights that

are theoretical or illusory but practical and effective”.46 This emphasizes the dynamic

position of the Strasbourg Court which has repeatedly characterized the Convention

as “a living instrument which should be interpreted according to present-day

conditions”.47 Taking into consideration that the ECtHR is the ultimate authority in

explicating the Convention, it instituted a way of affecting the form of protection

guaranteed therein48

Furthermore, the ECtHR has contributed to the elucidation of constitutional

notions of more “general” character like the rule of law. In case of Klass and others

vs. Germany

on the basis of the interpretation of the rather vague term of

“present-day conditions”.

49

44 The former President of the ECtHR Luzius Wildhaber describes it as quasi-Constitutional Court sui generis. See L. Wildhaber, “The place of the European Court of Human Rights in the European constitutional landscape”, in XVIth Congress of the International Academy of Comparative Law, 14-20 July, 2002, p. 2.

the Strasbourg Court underlined the rule of law as a fundamental

45 App. No. 15318/89, Loizidou vs. Turkey [1995] para. 75. 46 App. No. 6289/73, Airey vs. Ireland [1979] para. 24; App. No. 14038/88, Soering vs. UK [1989] para. 87. 47 App. No. 5856/72, Tyrer vs. UK [1978] para. 31; App. No. 53924/00, Vo vs. France [2004] para. 82; App. Nos. 46827/99 and 46951/99, Mamatkulov and Askarov vs. Turkey [2005] para. 121. 48 R. A. Lawson, H. G. Schermers, “Leading Cases of the European Court of Human Rights”, Ars Aequi Libri, 2nd edition, 1999, p. xxvii. 49 App. No. 5029/71, Klass and Others vs. Germany [1979].

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principle in a democratic society and further judged that “the rule of law implies, inter

alia, that an interference by the executive authorities with an individual’s rights

should be subject to an effective control which should normally be assured by the

judiciary, at least in the last resort, judicial control offering the best guarantees of

independence, impartiality and a proper procedure”.50 The Klass case inspired the

Strasbourg Court to particularly judge upon the judicial control regarding its

effectiveness.51

Traditionally speaking, the Strasbourg Court was introduced to observe the

engagements undertaken by the parties of the Convention.

52 As the engagements

deriving from the Convention abut on human rights protection and are referred in

regard to the parties thereto. Despite the membership of all EC/EU member states to

the ECHR, the EC/EU was still not a party of the Convention and therefore in any

way not bound by it.53

Nonetheless, in recent years, the ECtHR has started entertained indirect

complains against EC/EU rules in cases brought against EC/EU member states. The

initiative was given by the (former) Commission on Human Rights with the cases M.

& Co. vs. Federal Republic of Germany

Thus the EC/EU legal norms were not subject to the review

jurisdiction of the ECtHR.

54 and Heinz vs. the Contracting States party

to the European Patent Convention insofar as they are High Contracting Parties to

the European Convention on Human Rights;55

50 Idem, para. 55.

where in the latter the Commission on

Human Rights stated that “the Convention does not prohibit a High Contracting Party

from transferring powers to international organisations” and concluded that “within

that organisation fundamental rights will receive an equivalent protection”.

51 App. Nos. 1209/84, 11234/84, 11266/84 and 11386/85, Brogan and Others vs. UK [1988] para. 58; App. No. 21987/93, Aksoy vs. Turkey [1996] para. 76. 52 Article 19 ECHR. 53 P. R. Waagstein, “Human Rights Protection in Europe”, SPICE Digests, Freeman Spogli Institute for International Studies, Spring 2010, available at http://iis-db.stanford.edu/docs/441/humanrights_ineurope_Layout_1.pdf; L. F. M. Besselink, “The European Union and the European Convention on Human Rights after the Lisbon Treaty: From Bosphorus Sovereign Immunity to Full Scrutiny?” in A. Sabitha (ed.), “State Immunity: A Politico-Legal Study”, The Icfai University Press, 2009, pp. 179-196; App. No. 8030/77, CFDT vs. European Communities, DR 13 1978; App. No. 24833/94, Matthews vs. UK [1999] para. 32. 54 App. No. 13258/87, M. & Co. vs. Federal Republic of Germany, 64 D & R 138. 55 App. No. 21090/92 Heinz v. the Contracting States party to the European Patent Convention insofar as they are High Contracting Parties to the European Convention on Human Rights, 76 AD & R 125.

11

Following the above decisions, the ECtHR confirmed in the case Matthews vs.

UK56 that the Convention does not forbid any of its members from transferring

competences to other international organizations under the prerequisite of security of

Convention rights. In addition, the Strasbourg Court stated that the State remain

responsible after such a transfer. Under this aspect the ECtHR would continue to hold

the States liable for the exercise of competences having already been transferred to

international organizations in order to prevent possible loopholes in human rights

protection.57

The importance of Matthews case is not merely its legal interpretation of

competence transfer or liability; it is the first case where the liability of EU member

states (the UK in particular) to the Convention when implementing EC/EU law was

challenged.

58 The infringement found arose from a European Community’s treaty

(1976 Act). Since the UK was a member of this treaty and the treaty cannot be

challenged before the ECtHR as it is not a Community’s normal act, the UK was

responsible ratione materiae for the consequences of the treaty.59

The position of the Strasbourg Court’s determination to embrace indirect

challenges against EC/EU (secondary) acts in its rulings was strengthened by the

formulation of its decision in a variety of cases.

60 Although in cases of Guerin,61

Senator Lines62 and Emesa Sugar63

The most important case regarding the jurisdiction of the ECtHR over EC/EU

acts was that of Bosphorus. Bosphorus was a Turkish airline that had leased two

EC/EU institutions’ acts were at stake (EC

Commission acts in the first two, an ECJ ruling in the third respectively), the ECtHR

declared the relevant applications inadmissible for substantive reasons overlooking

the issue of its jurisdiction upon EC/EU measures.

56 Matthews vs. UK, supra note 53. 57 R. Harmsen, “National Responsibility for EC Acts under the ECHR: Recasting the Accession Debate” European Public Law, 7, 2001, p. 625; T. Ahmed, I. de Jesus Butler, “The European Union and Human Rights: An International Law Perspective” European Journal of International Law, 17 (4), 2006, p. 782. 58 S. Peers, “Bosphorus, European Court of Human Rights. Limited Responsibility of European Union member states for actions within the scope of Community law. Judgement of 30 June 2005, Bosphorus Airways vs. Ireland, Application No. 45036/98” European Constitutional Law Review, 2, 2006, p. 444. 59 Matthews vs. UK, supra note 56, para. 54. 60 P. Craig, G. de Burca, “EU Law. Texts, Cases and Materials”, Oxford University Press, 4th edition, 2008, pp. 420-422; S. Douglas-Scott, “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis” Common Market Law Review, 43, 2006, n. 41. 61 App. No. 51717/99, Guerin Automobiles vs. les 15 Etats de l’ Union Europeenne [2000]. 62 App. No. 56672/00, DSR-Senator Lines GmbH vs. The 15 Member States of the European Union [2004]. 63 App. No. 62023/00, Emesa Sugar vs. the Netherlands [2005].

12

aircrafts from the Yugoslav national airline, one of which was seized by the Irish

authorities. Due to the Yugoslavian war, sanctions were imposed by the United

Nations (UN) on the warring ex-Yugoslavian states; sanctions that were implemented

in EU level through the Council Regulation 990/93. Article 8 of the Regulation stated

that EU member states (Ireland in particular) could impound aircraft in which a

majority or controlling interest is held by a person or undertaking in or operating from

the Federal Republic of Yugoslavia.64

Bosphorus opened a case before the Irish courts up to the Supreme Court which

referred questions to the ECJ under the preliminary ruling process. In its judgement,

65

the ECJ concluded that the general interest of the Community to put an end to the

state of war in the region and to the massive violations of human rights and

humanitarian international law in the Republic of Bosnia-Herzegovina prevails over

the impounding of the aircraft in question that encompasses the company’s right. The

Irish Supreme Court adopted the ECJ ruling; as a result Bosphorus complained before

the ECtHR.66

The Court in Strasbourg asserted that the case fell into the jurisdiction of Ireland

within the scope of article 1 ECHR since the aircraft was seized by Irish authorities

following a decision by the Minister of Transport. Hence, the complaint of the

addressee about that act was compatible ratione loci, personae and materiae with the

provisions of the Convention.

67

After amounting the interference to the applicant’s property to “control of use”,

the ECtHR investigated on whether that interference was the result of an exercise of

discretion and affirmed that the Irish State simply complied with its legal obligations

flowing from EC law, article 8 of EC Regulation 990/93 in particular. Taken into

account that the Convention had to be interpreted in the light of the principles of

international law, especially that of pacta sunt servanda,

68

64 For further analysis: S. Douglas-Scott, “Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi vs. Ireland, application No. 45036/98, judgement of the European Court of Human Rights (Grand Chamber) of 30 June 2005, (2006) 42 E.H.R.R. 1” Common Market Law Review, 43, 2006, pp. 243-254; A. Hinarejos Parga, “Bosphorus vs. Ireland and the protection of fundamental rights in Europe” European Law Review, 31, 2006, pp. 251-259, C. Costello, “The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe” Human Rights Law Review, 6, 2006, pp. 87-130; K. Kuhnert, “Bosphorus-Double standards in European human rights protection?” Utrecht Law Review, 2, 2006, pp. 177-189; Peers, supra note 58.

the general interest of

65 Case C-84/95 Bosphorus vs. Minister for Transport, Communications et al. [1996] ECR I-3953. 66 App. No. 45036/98, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi vs. Ireland [2006]. 67 Idem, para. 137. 68 Idem, para. 150.

13

compliance pursued by the impugned action69

The ECtHR re-confirmed its principle that the Contracting Parties are not

prohibited from transferring power to international organizations; however they stay

responsible under article 1 ECHR for acts and omissions of their organs regardless of

whether those acts or omissions were a consequence of domestic law or of a necessity

of compliance with international legal obligations.

was not only legitimate but of

considerable weight.

In order to examine the justification of the interference of the Irish authorities

with the applicant’s property on the basis of compliance with EC obligations, the

ECtHR reiterated the concept of “equivalent protection” of human rights in EC/EU

level, as provided by the Convention.70 If such protection existed, it was presumed

that the State has not departed from the requirements of the Convention, when it

simply implemented legal obligations flowing from its EC/EU membership. The

Strasbourg Court continued that such a finding of equivalence could not be final and

would be susceptible to review in the light of any relevant changes in fundamental

rights protection.71 Furthermore, any presumption can be rebutted if, in the

circumstances of a particular case, it is considered that the protection of Convention

rights was manifestly deficient. In such cases, the interest of international cooperation

would be outweighed by the Convention's role as a “constitutional instrument of

European public order” in the field of human rights.72

The approach of the ECtHR in the above mentioned cases clearly demonstrates

an intention to indirectly examine EU law, both primary and secondary for

compliance with the Convention; in one sense this has led to a de facto EU accession

to ECHR.

73

69 Ibid.

By focusing on possible human rights violations derived from EU

legislation, the Strasbourg Court raised the issue of Union’s responsibility examined

on a case by case basis. Therefore, even under the protective Bosphorus presumption,

the EU could be still found guilty for no compliance with the Convention without a

precise prospect to effectively defend itself. Furthermore, in cases that the member

states have no discretion when implementing an EU legal act (EU primary law,

70 See Heinz, supra note 55. 71 Douglas-Scott, supra note 64, p. 247. 72 Bosphorus, supra note 69, para. 156. 73 Harmsen, supra note 57, p. 640; A. Verstichel, “European Union accession to the European Convention on Human Rights” in P. Lemmens, W. Vandenhole, “Protocol No. 14 and the Reform of the European Court of Human Rights”, Intersentia, 2005, p. 129.

14

Regulations), it seems inequitable for them to hold responsibility for human rights

violations.74

Under the circumstances, the Court in Strasbourg raised the gates of

accession for EU to ECHR.

2. Institutional approach

2.1 The 1979 European Commission Memorandum

The first positive approach for the accession of the Community to the ECHR

was chronologically put in 1979 when the European Commission made a proposal for

further discussion on accession analysed in the 1979 Commission Memorandum.75 As

mentioned in its introduction, the Commission underlined the necessity for

fundamental rights protection within the Community because of the latter’s upgrading

activities that concern individual citizens; the Commission clarified the opinion that

the Community should endeavour to complete the Treaties with a catalogue of

fundamental rights. But as this achievement demanded long term discussions among

Member States, the accession to ECHR at that time consisted the best way to

reinforce fundamental rights protection in Community level.76

The Commission based its arguments on the improvement of the Community

image as a guardian for human rights and democracy, the enhancement of its own

international personality

Beyond dispute, a

possible accession of the Community to the ECHR would not be an easy step, many

arguments had developed in favour of as well as against this accession; those

arguments were also summarized in the Memorandum.

77 and the strengthening of its institutions. Having been

highly influenced by the relevant ECJ judgments of the 70’s78 and several

declarations on human rights by the Member States79

74 Douglas-Scott, supra note 71, p. 252; J. Dutheil de la Rochere, “The EU and the Individual: Fundamental Rights in the Draft Constitutional Treaty” Common Market Law Review, 41, 2004, p. 352.

and other political Community

75 Commission Memorandum, Bulletin of the European Communities, Supplement 2/79. 76 Unlike the Report of 1976 where the Commission found the accession of the Community to ECHR unnecessary as the Community was already bound to the rights included to the ECHR on the basis of ECJ case-law, Bulletin of the European Communities, Supplement 5/76, point 28. 77 K. Economides, J.H.H. Weiler, “Report of Committees, Accession of the Communities to the European Convention on Human Rights: Commission Memorandum.”, The Modern Law Review, 42(6), 1979, pp. 683−695. 78 See sub-chapter 1.1 of this paper. 79 Declaration on European Identity, Bulletin of the European Communities, December 1973, No 12, pp. 118-122.

15

institutions,80

Furthermore, the Community would be in position to participate in proceedings

before the organs of the ECHR regarding Community legal acts. Cases of complaints

against a Member State’s piece of legislation which implemented Community rules,

under the law of the ECHR, entitled the Strasbourg authorities to substantially control

the Community rule behind the national legal act without the Community being able

to defend itself.

the Commission seemed to understand that those declarations of

political nature should be given the proper weight through the materialization to

specific actions; the best way for the Community to achieve this was a possible

adoption of a fully accepted, concrete and practically formulated fundamental rights

catalogue.

81 This participation of the Community to the ECHR organs would

also contribute to the better compliance of EC acts with human rights and avoidance

of conflicting and inconsistent law-making.82

Although, a positive approach was expressed in general, substantial difficulties

and technical problems arose. Disagreements in principal focused on the development

of an own bill of rights within the Community legal order as the Community should

primarily deal with the protection of economical and social rights rather than

defending traditional, pan-human doctrines, the purpose that the ECHR was

established to fulfill.

83 The point that should be addressed here concerns the purpose

and scope of the Community at that time. The Treaties of Paris and Rome were

designed as instruments of economic integration and included principles for the

achievement of that integration.84

80 Joint Declaration by the European Parliament, the Council and the Commission, OJEC 27.04.1977, No. C 103, p. 1.

The four traditional freedoms (movement of goods,

services, people and capital) that were granted to the citizens of the Member States

strengthened the economic identity of the Community; article 3 of the European

Economic Community (EEC) Treaty implicitly set merely economic targets.

81 This was also the reason that the ECtHR established the principles of State liability and equivalent protection. 82 L. Saltinyte, “European Union accession to the European Convention on Human Rights: Stronger Protection of Fundamental Rights in Europe?”, Jurisprudence, 2(120), 2010, pp. 177-196. 83 R. Blackburn, “The Institutions and Processes of the Convention” in R. Blackburn, J. Polakiewicz (eds.), “Fundamental Rights in Europe, The ECHR and its Member States, 1950-2000”, Oxford University Press, 2001, pp. 8-9. 84 B. Balassa, “The Theory of Economic Integration”, Richard D. Irwin, 1961, pp. 3-4; T. Christodoulidis, “The Historical Route of the European Integration” in K. Stefanou, A. Fatouros, T. Christodoulidis (eds.) “Introduction to European Studies Volume 1 History-Institutions-Law”, I. Sideris, 2001, pp. 42-45 (in Greek); D. Chalmers, G. Davies, G. Monti, “European Union Law: Text and Materials”, Cambridge University Press, 2nd edition, 2010, pp. 12-13.

16

Therefore, a catalogue of Community rights would have been more adapted to the

existed at that time political reality.

Nevertheless, the ECJ had already dealt with problems with reference to

traditional fundamental rights so that doctrines of their protection were included in its

case-law. After the early development of the doctrine of fundamental rights protection

at Community level and the insertion of the international treaties of human rights as

an additional source for that protection, the avocation with specific traditional rights

was simply a matter of time. Hence, directions for human rights protection, besides

(and included) those of economic nature, had already dispensed in the Community

legal order and in that sense, the accession of to the ECHR would just confirm and

upgrade the ECJ position towards fundamental rights to primary Community law.

Major problems that the Commission would challenge within a possible

accession are those of participation of Community in the institutions of the ECHR and

the fulfillment of obligations arising from the Convention.

Firstly, the State-oriented approach of the ECHR dictates that sovereign States

should participate. Therefore, under the constitutional structure of the time, the

Community would face difficulties in fully complying with ECHR institutional law.

For example the term “State” or “national security” or “country” in many provisions

of the Convention, could not directly apply to international organizations. The

Commission suggested a more dilative interpretation and an interpretative clause for

those provisions to be applied mutatis mutandis to the Community. Another issue

arisen regarding the obligation of States to hold free elections to ensure the opinion of

the people. The Council of the Communities was not directly elected; hence the

Community could not fulfill that Convention obligation. However, according to the

Commission a reservation could be entered, as an ultimate solution, that such an

accession would not affect the Community’s institutional structure.85

A second issue arose with reference to judicial protection for individuals. This

essential fundamental right could not be excluded from a complete Community

human rights protection policy. Nonetheless, the Treaties disallowed the Member

States to settle disputes regarding Community law in a different manner than as laid

down therein. The Commission argued that the Community could accede with a

85 1979 Commission Memorandum, supra note 75, point 22.

17

tendency that the accession to ECHR would eventually turn to be an opportunity for

the Community to recognize the individual right of petition.86

A final matter of institutional nature was that of participation of Community

representatives to the institutes of the Convention. It is extremely significant that the

Community should be represented in the organs of the ECHR especially when

Community rules are at stake. This presumed derogations from articles 20 and 38,

regarding nationality of the members of the ECHR organs and articles 39 and 66

regarding the membership in the Council of Europe, as a prerequisite, which in any

case the Commission did not find necessary for the Community to access.

87

The Commission Memorandum of 1979 is of highest importance for the future

of the Community. Not only overviewed positions, advantages and disadvantages of

the time and formulated possible solutions for the Community to surpass pertinent

problems, but it inaugurated practical aspects of human rights policy in the legal order

of the Community. It was the first time that an official Community instrument

proposed a solution, as far as human rights are concerned, which demonstrates a

certain political will, the absolute necessity for accession of the Community to the

ECHR. However, the Commission’s point of view excluded technical details of

accession in relation to legal personality and competence of the Community. More

than a decade later, this would be the central issue in formal discussions regarding the

future of the EC/EU and the ECHR.

88

Following the 1979 Memorandum, no important further step was taken.

89

Various European Parliament requests to the Commission on accession (1982 and

1985) had not proceeded because of objection of certain Member States.90

86 Idem, para. 27.

On their

side, the Member States were seen to simply adopt the position as expressed in the

case-law of the ECJ through reference to fundamental rights, for the first time in

Treaty text, on the Preamble of the Single European Act (SEA) in 1986. This was

crystallised in the Maastricht Treaty establishing the European Union where article F

87 Idem, paras. 30-37. 88 See above sub-chapter 1.2. 89 R. Lawson, “Confusion and Conflict? Diverging Interpretations of the European Convention on Human Rights in Strasbourg and Luxembourg” in R. Lawson and M. de Blois (eds.), “The Dynamics of the Protection of Human Rights in Europe / Essays in Honour of Henry G. Schermers”, Martinus Nijhoff Publishers, 1994, p. 220. 90 L. Betten, “The Protection of Fundamental Social Rights in the European Union - Discussion Paper” in L. Betten, D. Mac Devitt, “The Protection of Fundamental Social Rights in the European Union”, Kluwer Law International, 1996, p. 8.

18

(2) includes fundamental rights as guaranteed by the ECHR and result from common

constitutional traditions as general principles of Community law.91

2.2 The Council of Europe’s point of view

Discussions of EC/EU possible accession to the ECHR could not passed

unmarked by the ECHR institutional authorities. In a declaration of 2000, the

European Ministerial Conference on Human Rights emphasized on the unity of

human rights protection in Europe by pointing out the role of the Council of Europe

as the appropriate institution for the achievement of that unity and reaffirmed that the

ECHR must continue to play a central role as the constitutional instrument of

European Public order on which the democratic stability of Europe depends.92

In 2002, the CDDH adopted a report which contained technical and legal

aspects of EC/EU accession to ECHR,

Not

much later, the CDDH was inaugurated to study the technical aspects on the possible

accession. From the beginning, the position of the Council of Europe towards EC/EU

was quite clear; it welcomed the developments in the Union level regarding human

rights protection. Nevertheless, the Council of Europe addressed the major role that

the ECHR is called to play in that matter; adequate protection of human rights in

Europe could be accomplished through the effective implementation of the ECHR at

both national and European level. This reveals the steady position of the Council of

Europe on precedence of the ECHR when issues of human rights arise.

93 an extensive report that identified and

clarified all technical issues, in the context of the Council of Europe, which demanded

lucid solutions for a possible accession to move on. The Report was organized in

three chapters each of which was dealing with issues of different nature.94

91 The terminology and concept in both the Single European Act and the Maastricht Treaty is similar to that of the ECJ in various cases, see sub-chapter 1.1. A difference that may be observed is related to the absence of the reference of the Social Charter in the Maastricht Treaty.

For the

better understanding of probable amendments, the CDDH added an appendix were it

exemplified its proposals.

92 Declaration of 3 November 2000, “What Future for the Protection of Human Rights in Europe?”. 93 Document DG-II (2002) 006. 94 For a diagrammatic depiction see E. Myjer, “Can the EU Join the ECHR – General Conditions and Practical Arrangements”, in Ingolf Pernice, Juliane Kokott, Cheryl Saunders, “The Future of the European Judicial System in a Comparative Perspective”, Nomos Verlag, 2006, pp. 305-307.

19

The first chapter dealt with the modalities from the point of view of Treaty law.

A fundamental question related to the exceptional status of the EC/EU occurred

regarding the process that would have to be followed in a possible accession; EC/EU

is not a sovereign state and of course not a member of the Council of Europe as article

59 ECHR demanded. This and many other amendments should be forwarded and

agreed. The CDDH acknowledged two possible solutions for adoption in terms of

Treaty Law: an amending protocol to the ECHR or an accession treaty and argued in

favour of the second. The arguments were based on the efficiency of the procedure

where the ECHR members and the EC/EU would just need to conclude the accession

treaty and therefore avoid a time-consuming adoption and ratification process of an

amending protocol on one hand and the accession of the EC/EU to the amended

Convention on the other hand.

The EC/EU authorities are totally familiar with all technical affairs of an

accession treaty in the sense that this particular instrument has become its regular

policy when welcoming new members. And given the fact that since 1957 many new

members have been accepted in the European “family”, all of which are also members

of the ECHR, the method of formulating an accession treaty has been tested many

times in practice.95

Nevertheless the ECHR legal system’s practice pleaded for the other solution,

an amending protocol.

96 From the very beginning, the instrument of signature-

ratification for members of the Council of Europe was adopted, for the Convention

itself.97 Hence, the members were bound by the Convention after the finalization of

this procedure. As far as amendments of the Convention were concerned, the same

modus operandi was applied under similar standards and was included in the relevant

protocols.98

To the very end, the use of either an amending protocol or an accession treaty

leads to the same result at the stage of ratification. Eventually, both instruments need

to be used in different levels. An amending protocol should be firstly forwarded

where all necessary amendments in the Convention and the existing protocols would

be drawn at and which all the ECHR members would have to sign and ratify by

95 Up to now six accession treaties have been signed (1973, 1981, 1986, 1995, 2004, 2007). 96 This was also the case in the EU accession to ECHR with Protocol 14 but it will be discussed later in that paper. 97 P. van Dijk, G.J.H. van Hoof, “Theory and Practice of the European Convention on Human Rights”, Kluwer Law International, 3rd edition, 1998, p. 7. 98 For example article 6 of Protocol 13.

20

following their constitutional requirements, thereinafter the EC/EU could start

negotiating its accession on the basis of that protocol. The accession treaty would be

the outcome of those negotiations which will be adopted under the rules set up in

article 218 Treaty on the functioning of the European Union (TFEU).99

In the second chapter, the CDDH focused on clear technical issues and proposed

amendments in specific ECHR articles. In some cases amendments were portrayed as

necessary, while in others just as advisable.

A major provision that should be necessarily amended was the one of article 59

of the ECHR. As signature of the ECHR was open to the members of the Council of

Europe and the EC/EU was not contemplating a relational membership,100

Provisions referring to the terms “State”, “national security” or “territorial

integrity” could create interpretational problems and therefore were highly suggested

to be revised. In order to avoid complex transformation in many articles and

paragraphs of the ECHR,

the

insertion of a specific paragraph in article 59 for EC/EU accession was deemed to be

essential.

101 an interpretative clause could clarify that whenever terms

relating to States are used, they also applied mutatis mutandis to the EC/EU. With

reference to participation of an EC/EU representative to the Committee of Ministers, a

statutory resolution of article 14 of the Statute of the Council of Europe102

Nonetheless it should be pointed out that the Committee of Ministers is an organ

of highly political nature with a general mission to materialize the aims of the Council

of Europe.

could solve

all construal problems.

103

99 T. Lock, “EU accession to ECHR: Implications for Judicial Review in Strasbourg”, European Law Review, 6, 2010, p. 778. Although it may take time, the process of ratification of the accession treaty on behalf of member states is not a major issue as all EU member states would have already ratified the amending protocol legal basis for negotiations as members of the ECHR. 100 In line with the position expressed by the Commission in the 1979 Memorandum, supra note 87, point 35. 101 For example article 8, para. 1; article 10, para. 1; article 11, para. 2; article 15, para. 2; article 17; article 27, paras. 2, 3; article 38, para. 1a; article 56, paras. 1, 4 and article 57, para. 1. 102 Article 14 states among others that “each member shall be entitled to one representative on the Committee of Ministers, and each representative shall be entitled to one vote. Representatives on the Committee shall be the Ministers for Foreign Affairs”. 103 G. de Vel, “The Committee of Ministers of the Council of Europe”, Council of Europe Press, 1995, pp. 26-31; F. Benoit-Rohmer, H. Klebes, “Council of Europe Law Towards a pan-European Legal Era”, Council of Europe Publishing, 2005, pp. 48-56.

21

High Representative for Common Foreign and Security Policy) and more importantly

to what extent this representative would act divergently from his own member state’s

interests which maybe had served at the same post.

Although the EC/EU had already developed its own legal order, the

political integration would need many steps to be fulfilled. An issue that could be

raised is that of the representative of the EC/EU at the Committee (most probably the

104

Another important reason that the participation of an EC/EU representative in

the Committee of Ministers could have been problematic was the absence of a

common foreign policy related to human rights within the EC/EU.

105 Forasmuch as a

task of the Committee of Ministers is to consult together international problems of

common interest and try to take a common stand regarding events that violate the

general ideas, on which the ECHR is based,106 the EC/EU could not have contributed

much because of this lack of common policy. The issue of participation of the EC/EU

in the Committee of Ministers was also debased by the Commission which had

proposed that the Committee should be excluded from proceedings relating to

Community matters.107

In case of a possible accession, it might be crucial that the procedure before the

ECJ would not be characterized as one of “international investigation or settlement”

in the sense of article 35 of the ECHR. A negative approach to the above would lead

to a limitation on behalf of the ECtHR to control a case that the ECJ has already dealt

with. Therefore, under the legal system of the ECHR, the ECJ should rather be

considered as a “national” court.

108

A matter of great importance raised on the position of the EC/EU in the

proceedings before the ECtHR. The capability of the EC/EU to participate in the

proceedings with the consequent right to defend itself, especially when Community

law is at stake, was probably the main reason why this whole accession debate had

started.

109

104 For example, the last High Representative for Common Foreign and Security Policy of the Union, Javier Solana had served as Minister of Foreign Affairs for Spain.

Unarguably, the EC/EU should participate equally, like all other ECHR

members, when an application is brought against it. The matter became more

complicated when related to the third party intervention of article 36, para. 1 ECHR.

105 B. Schmitt, “Common policy failure: Disunity holds the EU back from a major global role”, The New York Times, at: http://www.nytimes.com/2003/02/13/opinion/13iht-edschmitt_ed3_.html (13-2-2003). This opinion was unfortunately enforced by MEP Toomas Hendrik Ilves, vice chairman of the European Parliament's foreign affairs committee who stated: “we should have a coordinated foreign policy; now we don't have a common foreign policy on any matter”, The Baltic Times (22-2-2006). 106 de Vel, supra note 103, p. 27. 107 1979 Commission Memorandum, supra note 100, point 34. 108 Idem, point 24. The CDDH approach may also be seen in Lock, supra note 97, p. 788. 109 Idem, point 15. See also “Accession of the European Union to the European Convention on Human Rights”, comments made by O. de Schutter, pp. 5-6, available at http://www.statewatch.org/news/2007/sep/decchutte-contributin-eu-echr.pdf.

22

Under this process, any High Contracting Party may submit comments and take part

in the hearings when one of its nationals is an applicant. The establishment of the

citizenship of the Union is strongly tightened to the nationality of the EU member

states; every national of a member state holds the citizenship of the Union.110

Being more specific, the CDDH recommended the innervation of a new, special

mechanism within the accession process so that the EC/EU would be given the

opportunity (or even be obliged) to participate in the proceedings as co-Defendant

alongside the EC/EU member state against which the application was initially brought

concerning issues involving Community law. From a European point of view,

autonomy of EC/EU law and subsequently of the legal order could better be defended

before the ECtHR as EC/EU would be in the position of directly defending itself.

Plus, the notion of coherence among the two legal orders could be boosted in terms of

the existence of a straight, official process in which both the ECtHR and the EC/EU

participate and express thoughts and opinions.

In that

sense, being granted that particular right to EC/EU might lead to a large number of

interventions based on nationality.

A very sensitive issue arose with regard to the participation of a judge elected in

respect of EC/EU in the ECtHR. From the ECHR law point of view the ECtHR

consists of a number of judges equal to that of the High Contracting Parties (article 20

ECHR), but since a potential EC/EU accession demanded different approaches in

many issues because of its institutional structure as an organization that enjoys partial

sovereignty,111

110 See article 9 TEU and article 20, para. 1 TFEU.

four possible options were presented with reference to this issue. The

first developed a negativism on the basis that the ECtHR had -at that time- 15

“European” judges, hence another one would be superfluous. The second and third

options described the EU judge as a “part-time” judge, either ad hoc, or full time, with

limited participation, only in cases involving EC/EU law. The CDDH mostly argued

in favour of the fourth option which would be the presence of an EC/EU judge

equally participating as all other judges, still with some exceptions. The exceptions

were based on the proposition that a chamber possibly composed of judges coming

from EC/EU and its member states would contradict in principle the philosophy of the

111 N. Nugent, “Government and Politics of the European Union”, Duke University Press, 6th edition, 2010, pp. 546-548; Chalmers et al. supra note 82, pp. 185-188.

23

ECHR which reflects the legal multiculturalism. This idea was also in line with the

spirit of the ECHR and the principle of judicial independence.

For purposes of avoidance discrepancies in the approach adopted by the ECJ

and the ECtHR in fundamental rights issues, a special type of “preliminary ruling”

was proposed. Under that process, the ECJ would be eligible to request an

interpretation of the ECHR from the ECtHR. In that sense, not only divergences

would be derogated, but also the overload of cases in Strasbourg112

Closing this extensive report, the CDDH focused on possible means, other than

the accession, to avoid contradictions between the legal systems of the EC/EU and the

ECHR (chapter 3). The first proposal on that was the maintenance of the ECHR as the

main legally binding instrument for fundamental rights protection in Europe. That

reflects the “special role” that the ECHR has in comparison to other international

treaties

could be partially

countered (regarding EU member states) since the ECtHR opinion would be already

known.

113 thus the state parties cannot choose to derogate from them on the basis of

other international obligations.114

The report contributed a lot in possible amendments of the ECHR in view of the

EC/EU accession from a technical perspective. In fact a consensus with the

Commission’s positions in the 1979 Memorandum could be observed to some degree;

a fact that illustrated the will of both institutions to overcome possible difficulties so

that the EC/EU might be finally able to accede to ECHR. Although it would be

slightly impossible for a simple technocratic Committee to impugn issues that are

Subsequently, the idea of creation of a preliminary

ruling mechanism as described above was reinforced and was put forward as to the

whether this ruling should be binding or not upon the ECJ. Finally the introduction of

a panel among the two Courts was advised on the model of the highest federal courts

in Germany.

112 S. Greer, “What’s Wrong with the European Convention on Human Rights?”, Human Rights Quarterly, 30, 2008, p. 684. This argument is strengthened by the reports of the ECrtHR where the year by year growth of the number of cases is demonstrated, available at http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+information+by+year/. 113 A. Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of European Court of Human Rights”, European Journal of International Law, 14, 2003, pp. 540-544. 114 C. Lebeck, “The European Court of Human Rights on the relation between ECHR and EC-law: the limits of constitutionalisation of public international law”, Zeitschrift für öffentliches Recht, 62, 2007, p. 202; J. Frowein, “General Course: The European Convention on Human Rights as the Public Order of Europe”, in “The Protection of Human Rights in Europe”, Collected Courses of the Academy of European Law, I (2), Kluwer Law International, 1990, pp. 267-358.

24

either related to European law (e.g. legal personality, binding effect of the EU Charter

of fundamental rights) or carry a specific political gravity (e.g. participation of EC/EU

representatives on ECHR organs), the CDDH tried to address all possible conflicts

within the two legal systems and suggested mind provoking solutions of course from

the perspective of the Council of Europe.

The Council of Europe’s interest towards the accession of the Union in the

ECHR was expressed more clearly than ever in the Action Plan (Appendix 1) adopted

by the Council in the Warsaw Summit on 17 May 2005.115 The common values that

the Council of Europe and the European Union share were underlined and an early

accession was seen as obligatory for the assurance of human rights protection in

Europe. The arguments were enforced by the perspective of the enactment of the

Treaty establishing a Constitution for Europe where accession was explicitly included

for the first time.116 Ironically, just a few days later the French (29 May 2005) and

Dutch (1 June 2005) people democratically decided, via referenda,117

not to accept the

European Constitution; a fact that went the accession discussions a few steps back.

Part two: The Lisbon Treaty and beyond

1. Legal basis

1.1 The new article 6, para. 2, section 1 TEU and further process

Under the precise rule of the Court in opinion 2/94 it needed a Treaty

amendment for the Community (of the time) to accede to the ECHR as an outcome of

the absence of an explicit competence.118 This amendment was forwarded and a

specific provision was entered in the Treaty establishing the Constitution for Europe,

a Treaty that was never enacted.119

115 CM (2005) 80 final 17 May 2005. At the same line the speech of J.-C. Juncker in the summit, available at

However, the matter of accession was abided

http://www.coe.int/t/dcr/summit/20050516_speech_juncker_fr.asp (in French). 116 Title III, Article I-9, para. 2. 117 The result of the French referendum is available at http://www.interieur.gouv.fr/sections/a_votre_service/resultats-elections/rf2005/000/000.html and that of the Dutch one at http://www.kiesraad.nl/nl/Actueel/Persberichten/2005/Vaststelling_uitslag_raadplegend_referendum_Europese_Grondwet.html. 118 See sub-chapter 1.2 of this paper. 119 See supra note 117.

25

within the EU agenda and subsequently was included in the Treaty of Lisbon which

finally came into force on 1st of December 2009. According to the new article 6, para.

2, section 1 TEU:

“The Union shall accede to the European Convention for the Protection of Human Rights and

Fundamental Freedoms.”

The way that this provision is formulated describes the Union’s accession not

simply as a wish or a general idea, but more as a duty.120 The term “shall” exactly

reflects that perception in the sense of containing an obligation within a future time

instead of the term “may” that gives more freedom in acting.121

The above mentioned provision should not be examined independently of article

2 TEU.

Genrally, provisions

are technically enounced in either an obligatory or a more permissive mode within the

EU legal system; this is usually expressed with the terms “shall” and “may”

respectively. Article 8 TEU could be an example for both categories; para. 1 dictates

that the Union shall develop good relations with neighbouring countries, whilst para.

2 states that the Union may conclude specific agreements with those countries. Hence,

the terminology used in article 6, para. 2, section 2 underlines the importance on this

issue.

122 This provision, outcome of the Lisbon policy as well, illustrates the

democratic qualities and values of the Union that form part of the common EU

identity and inserts a general background for the protection of fundamental rights

within the Union to be based on and therefore materialised. This basis has an explicit

presence within the autonomous EU legal order and all the more in the forefront of

the Treaty and takes a sympolic approach in providing the Union with the obligation

to accede to ECHR.123

120 Contribution of Jacobs, supra note 3.

121 For a more detailed view N. P. Tillman, S. B. Tillman, “A Fragment on Shall and May”, American Journal of Legal History, 50, 2010, pp. 453-458. 122 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. 123 J.-C. Piris, “The Lisbon Treaty. A Legal and Political Analysis”, Cambridge University Press, 2010, p. 71.

26

A major matter that the Lisbon Treaty establishes is the legal personality of the

Union.124 This article comes to put an end to many relevant discussions especially

with reference to who shall accede to the ECHR, the EC or the EU. From the

enactment of the Treaty of Rome, the Member States intented to attribute legal

personality to the Community to act in international scene by concluding international

agreements125 under the principle of conferred powers. The situation became far more

complex after the creation of the European Union, a new entity that was based in the

three pillar system.126 The two new pillars (Common Foreign and Security Policy,

Justice and Home Affairs) that were introduced in the Maastricht Treaty, along with

the existing European Community, substantially changed the institutional framework

around the Community.127 Therefore an issue arose regarding the legal personality of

the Union itself,128 an open issue until the Lisbon Treaty era. Under the Lisbon

framework the three pillar system is abolished129

For the completion of the accession, an international agreement in the form of

an accession treaty need to be concluded according to the parameters set in article 218

TFEU. Under the new architecture of the Union’s external relations action, this

provision entails all procedural matters for negotiating and concluding an

international agreement.

and is replaced with a merged legal

personality for the Union which leads to the ability of the latter to participate in

international agreements.

130 As seen throughout article 218 TFEU, mainly the Council

determines the organization of the Union’s negotiation process, while receiving

recommendations from the Commission or the High Representative of the Union for

Foreign Affairs and Security Policy regarding topics of the ex-second pillar131

124 According to article 47 TEU: “The EU shall have legal personality”.

and is

125 R. Frid, “The Relations Between the EC and International Organisations. Legal Theory and Practice.”, Kluwer Law International, 1995, p. 19; R. Leal-Arcas, “EU Legal Personality in Foreign Policy?”, Boston University International Law Journal, 24 (2) 2006, pp. 197-199. 126 P. Craig, G. de Burca, “EU Law. Texts, Cases and Materials”, Oxford University Press, 2nd edition, 1998, pp. 24-29; B. Egelund Olsen, “The EU Legal System” in H. Tegner Anker, B. Egelund Olsen, A. Ronne (eds.), “Legal Systems and Wind Energy. A Comparative Perspective”, Kluwer Law International, 2009, p. 45. 127 D. McGoldrick, “International Relations Law of the European Union”, Longman, 1997, p. 4. 128 Arguments against and for the existence of EU legal personality even before the Lisbon Treaty may be found in R. Leal-Arcas, supra note 125, pp. 200-211. 129 P. Craig, “The Treaty of Lisbon, process, architecture and substance”, European Law Review, 33(2), 2008, pp. 137- 166. 130 C. Kaddous, “External Action under the Lisbon Treaty” in I. Pernice, E. Tanchev, “Ceci n'est pas une Constitution - Constitutionalisation without a Constitution?”, Nomos, 2009, p. 174. 131 Article 218, para. 3 TFEU.

27

finally responsible for concluding the agreement.132 In the case of the EU accession,

the consent of the European Parliament is required for the conclusion of the

agreement,133 while the Council’s final decision on concluding the EU accession

agreement shall be taken unanimously and ratified by the member states in

conformance with their constitutional requirements.134

An issue that may raise problems regarding the conclusion of an agreement for

EU accession to ECHR is that deriving from article 218, para. 11 TFEU. According to

that provision, any of the formal EU institutions involved in the process (Council,

Commission, European Parliament) as well as every member state may seek an

opinion from the ECJ as to whether the agreement is compatible with the Treaties.

The term “compatibility” refers to both the procedural provisions of the Treaties (i.e.

article 218 TFEU) and provisions of substantial nature.

135 Both situations do not

really affect a possible accession since the reasons that made the accession

incompatible with the Treaties have been already expressed136 and surpassed through

the Lisbon amendment. What may affect the conclusion of an accession agreement

regarding “compatibility” is whether it may also include review of specific clauses of

the agreement between the EU and the ECHR as the agreement will still be

“envisaged” under the concept of article 218 TFEU.137

From a more practical approach the European Commission and the Council of

Europe started official negotiations on the 7th of July 2010 with Viviane Reding,

Vice-President of the Commission and Thorbjørn Jagland, Secretary General of the

Council of Europe representing the two bodies.

In a positive response, re-

negotiations will become necessary if the Court finds asymmetries between clauses of

the drafted agreement and the Treaties; this process may end to be highly time

consuming especially if the initial negotiations have reached final stages.

138

132 Article 218, para. 6 TFEU.

The elaboration of a legal

instrument, or instruments, setting out the modalities of accession of the European

133 Article 218, para. 6, section a, issue ii TFEU. 134 Article 218, para. 8 TFEU. 135 G. M. Zagel, “Article 300 TEC on Agreements between the Community and One or More Member States or International Organizations” in P. Herzog, C. Campbell, G. Zagel, “Smit and Herzog on The Law of the European Union”, Vol. 4, Matthew Bender, 2005, pp. 1-51; G. De Baere, “Constitutional principles of EU external relations”, Oxford University Press, 2008, pp. 93-95. See also Opinion 2/00 [2001] ECR I-9713, para 5. 136 Opinion 2/94, see sub-chapter 1.2. 137 Eeckhout, supra note 41, pp. 243-246; A. Arnull, “The European Union and its Court of Justice” Oxford University Press, 1999, p. 642. Also on this issue Opinion 1/75 [1975] ECR 1355. 138 Council of Europe, Press release 545 (2010), 7-7-2010.

28

Union to the European Convention on Human Rights, including its participation in the

Convention system and the examination of any related issue shall be achieved at the

latest by 30 June 2011 according to a recent CDDH report.139

1.2 Protocol 14 ECHR and further amendments

From the Council of Europe’s point of view, Protocol 14 had been already

formulated since 2004. The main scope of Protocol 14 is the introduction of major

changes in the control system of the Convention in order to improve the efficiency of

the ECtHR and to reduce its workload as well as that of the Committee of Ministers of

the Council of Europe, which supervises the execution of the judgments. The ultimate

aim is to enable the Court to concentrate on those cases that raise important human

rights issues.140

The most important amendment regarding the EU accession to the

Convention is that of article 59 ECHR. According to article 17 of the Protocol 14, a

new paragraph shall be inserted that provides the Union with the opportunity to

accede. This new paragraph of article 59 states that:

“The European Union may accede to this Convention.”

The intention regularly expressed by the Council of Europe in welcoming the

EU to the ECHR is regulated there. The Council of Europe seemed ready from the

very beginning to put the basis for such an accession. Having in mind the finally

ineffective effort with reference to the Treaty establishing a Constitution for Europe

which also provided the EU with the legal basis needed for accession, the Council of

Europe started proceedings to adapt the Convention to such an action by amending

the most important provision therein, the one related to the signature and ratification

of the Convention. Of course the adoption of Protocol 14 was just the beginning since

as proven in practice the entry into force took much longer than expected.141

139 Report adopted in the 70th Meeting 15-18 June 2010, CDDH 2010 (010), para. 25.

140 “Protocol 14. The reform of the European Court of Human Rights”, Factsheet, p. 1, available at http://www.echr.coe.int/NR/rdonlyres/57211BCC-C88A-43C6-B540AF0642E81D2C/0/CPProtocole14EN.pdf. For a more extensive view on the process of adoption of Protocol 14, J. Lathouwers, “Protocol No. 14: Object, Purpose and Preparatory Work” in Lemmens, Vandenhole supra note 73, pp. 1-22. 141 The Protocol 14 finally entered into force on 1st June 2010 after its ratification by Russia that was the last state to ratify it. All information regarding ratification of Protocol 14 are available at

29

Protocol 14 technically initiated, from the ECHR law perspective, the changes

within the Convention for a possible EU accession, but still further modifications

shall be agreed for the continuation of the accession process.142

A clarification shall be made with reference to the terms that demonstrate the

State-oriented direction of the Convention. The solution proposed by the Commission

in the 1979 Memorandum that was later confirmed by the CDDH in its 2002

Report,

143

Far more important and complicated is the participation of the EU

representatives in the Council of Europe’s instruments that are in anyway related to

the ECHR. The instrument directly set up within the ECHR is the ECtHR which

ensures the observance of the engagements of the undertaken by the High Contracting

Parties (article 19 ECHR). The appointment of a judge elected in respect of the EU

complies perfectly with the ECHR provisions, thus no amendment is required therein.

On the contrary, article 20 ECHR directs the number of judges as equal to the one of

the High Contracting Parties and since the time of its accession, EU will be one.

of inserting an interpretative clause regarding the application of those terms

to the Union in the accession treaty seems adequate to avoid any inconsistencies.

Another more precise solution would be to insert a more general term; a probable one

could be the “the High Contracting Parties” or simply “the signatories”.

Moreover, an EU judge may contribute to the development of better

administration of justice in the ECtHR. The scope of EU activities becomes broader

that it turns out to be difficult to distinguish any areas not affected by them.144 In that

sense even more and more cases containing EU law may be brought before the

ECtHR where the presence of a judge with expertise in EU law will be decisive. In

fact, the Union had since many decades145

http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=194&CM=2&DF=19/02/2010&CL=ENG

constituted an autonomous legal order and

developed its own legal system that included fundamental rights protection, especially

with the inclusion of the EU Charter of Fundamental Rights in the new TEU. Hence,

the EU judge will represent a legal system, different from that of the EU member

states, for contributing to the legal multiculturalism of the ECtHR.

. 142 Factsheet, supra note 140, p. 3. 143 See pp. 17 and 21 of this paper. 144 G. Davies, “Subsidiarity: the wrong idea, in the wrong place, at the wrong time”, Common Market Law Review, 43, 2006, p. 63. 145 Case C-26/62 Van Gend en Loos [1963] ECR 1.

30

The process of selection of the EU judge will be one described in article 22

ECHR. For reasons of validity and democratic legitimacy, members of the EU

Parliament shall participate in the electoral process in the Parliamentary Assembly,146

General, full participation of EU Parliamentarians in the Parliamentary

Assembly of the Council of Europe would not be recommended for two main reasons.

The first is related to the number of the members in the Assembly. Under the current

standards, the Assembly consists of 642 members (321 principal and 321 substitutes)

that represent the member states of the Council of Europe. As those seats are granted

according to the population of each country, the disproportionately large EU

population and the analogous seats would make the Assembly dysfunctional.

as the Union institutions will be responsible for nominating the three candidates as

article 22 ECHR demands. The advisory opinion process of article 255 TFEU

regarding the candidates for the ECJ may apply mutatis mutandis. Therefore, the EU

judge in the ECtHR will enjoy more credibility being appreciated by legal specialists.

The other reason is related to political representation in the Assembly. The

members of the Parliamentary Assembly are elected (appointed) among members of

the National Parliaments.147 Delegations must show no worse a gender balance than

the relevant national parliament, while the fair representation of political parties or

groups within the Assembly shall be ensured.148 Therefore it could be observed that

the Parliamentary Assembly signifies the political status quo of the member states of

the Council of Europe. Although representatives are democratically elected every five

years, the situation does not differ much in the European Parliament. Pan-European

political parties have not developed a true “European” political identity but remain

weak coalitions of the national parties and therefore dependent on them;149

146 In line with point 7 of the European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, INI/2009/2241.

a fact that

leads to a deficit of democratic legitimacy in EU. European Parliamentarians simply

follow policies as developed within their national political parties respectively. As a

result, the only change that a possible participation of EU Parliamentarians could

bring to the Parliamentary Assembly is simply to increase the number of

147 Article 25, para. a of the Statute of the Council of Europe. 148 P. Evans, P. Silk, “The Parliamentary Assembly. Practice and Procedure”, Council of Europe Publishing, 10th edition, 2010, pp. 95-96. 149 J. Thomassen, “Parties and Voters: The Feasibility of a European System of Political Representation” in B. Steunenberg, J. Thomassen (eds.), “The European Parliament. Moving towards Democracy in the EU”, Rowman and Littlefield Pubishers, Inc., 2002, pp. 15-16.

31

representatives of EU member states in the Assembly. Nevertheless, co-operation

between the two bodies could be enhanced by granting to EU the status of observer in

the Assembly.

Regarding the Committee of Ministers, as already discussed150 the lack of a

common foreign policy in EU level, makes the Union’s full participation ineffective

in an organ of political importance. Nevertheless, with the establishment of the High

Representative of the Union for foreign affairs and security policy (HR), a different

basis for developing a common foreign policy has been set.151

With reference to the ECHR, the Committee of Ministers acts as a supervisor in

the execution of the judgments of the ECtHR (article 46, paras. 2, 3, 4 ECHR).

This does not

automatically imply the acquisition of a political consensus in foreign affairs issues in

the EU. However, the idea of a possible future participation of EU in the Committee

of Ministers should not be abandoned.

152 The

necessity of the Union to be able to participate in proceedings regarding the execution

of the judgements is quite reasonable. High criticism has been voiced for the

inconsistent approach of the Union in matters with reference to fundamental rights in

particular within the Union itself.153

Plus, a potential supervision would increase the prestige of the Union as an

organization that focuses in fundamental rights protection in practice. The gap

between the EU actions and the way that the citizens assume those actions becomes a

commonplace. As the Commission has pointed out, “they (the people) expect the

Union to act as visibly as a national government”.

And given the fact that twenty seven of the forty

seven members of the Council of Europe are EU member states, a large amount of

cases and hence violations, is subsequently brought against them. So the Union would

be highly interested in participating in the process of supervision for the coherence of

fundamental rights protection to be ensured, especially in its territory.

154

150 In pp. 21-22 of this paper.

A step to achieve this visibility

in fundamental rights policy is to be actively involved in an organ that substantially

151 N. Verola, “The new EU Foreign Policy under the Treaty of Lisbon” in F. Bindi (ed.), “The Foreign Policy of the European Union. Assessing Europe’s Role in the World”, Bookings Institution Press, 2010, pp. 44-49. 152 For the position of the European Parliament on the issue see supra note 146. 153 C. Turner, “Human Rights Protection in the European Community: Resolving Conflict and Overlap Between the European Court of Justice and the European Court of Human Rights”, European Public Law, 5(3), 1999, pp. 453-463; G. de Búrca, “Convergence and Divergence in European Public Law: the case of human rights”, in P. Beaumont, C. Lyons, N. Walker, “Convergence and Divergence in European Public Law”, Hart Publishing, 2002, p. 135. 154 Commission’s White Paper on Governance, Brussels, 25-7-2001, COM (2001) 428 final, p. 3.

32

guards compliance with fundamental rights, as the Committee of Ministers in the

form of article 46 ECHR.

Fundamental changes that need to be forwarded for a complete EU accession to

ECHR were described above. What may be more important is the application of

certain provision of the Convention to the special characteristics of the Union.

Provisions like article 33 ECHR (inter-state cases), article 35, para. 2 (procedure of

international investigation or settlement), the status of the Union when intervening or

simply when being in a defending position and the possible judicial interaction with

ECHR member states could create interpretational conflicts. An analysis of those

matters will be attempted later in this paper.

2. Re-structure of the “pillars” of fundamental rights protection in Europe

In the territorial region of Europe, protection of fundamental rights may be

found in many legal documents of national and supra-national level that represent

autonomous legal orders but are in an interactive relationship to each other. In

national level, a concrete catalogue of fundamental rights that are protected can be

observed in every Constitution. This defines the first “line” of protection where the

citizen may rely on within the geographical area of the State.155

The application of the Convention in national legal order and therefore its

hierarchical position therein varies among member states.

In supra-national

level, after the enactment of the Lisbon Treaty, two catalogues of fundamental rights

co-exist in Europe. On one hand the EU Charter of Fundamental Rights that embodies

the EU legal order and is effective within the Union and on the other hand, the ECHR

that reflects the principles of the Council of Europe in a more pan-European

dimension which includes more than the 27 EU member states.

156

155 A. Voskuhle, “Protection of Human Rights in the European Union. Multilevel Cooperation on Human Rights between the European Constitutional Courts”, Lecture on session 6, “Human Rights-Global Culture-International Institutions”, Hannover, 4-11-2010, p. 2.

However, the impact and

influence of the Convention in interpreting the constitutional rights and freedoms has

become inextricable. For example the Federal Constitutional Law in Germany held

that “in interpreting the Basic Law, the content and development of the European

Convention on Human Rights are also to be taken into account” and further continued

156 For more on this issue see P. Van Dijk, G. J. H. van Hoof, “Theory and Practice of the European Convention on Human Rights”, Kluwer Law International, 3rd edition, 1998, pp. 16-22; J. Polakiewicz, “The Status of the Convention in National Law” in Blackburn, Polakiewicz, supra note 83, pp. 31-53.

33

that “the case-law of the European Court of Human Rights also serves in this regard

as an interpretational aid in defining the content and reach of the Basic Law’s basic

and principles of rule by law”.157 The situation is quite similar in Greece158 and

Spain159

This approach adopted especially by EU member states should be interpreted

under the light of the general relations between national law and EU law. The EC/EU

had already entrenched the protection of fundamental rights through the case-law of

the ECJ

where the interpretation of national fundamental rights and freedoms is in

conformity with the ECHR.

160 by being inspired by the ECHR, a fact that was later converted to Treaty

law in SEA and Maastricht. As European law takes precedence over national law,161

An issue that remains quite vague and could be examined concerns the relations

among the Council of Europe and the Union under the light of the accession of the

later to the ECHR.

the member states are obliged to respect the Convention when acting in European

Union competence’s domain.

2.1 Integration of the two “Europes”

Since the decade of the 50’s two international organizations of extreme

significance arose within the continent of Europe.162 First the Council of Europe

clearly focused on matters regarding the principles of rule of law and democracy with

particular emphasis on human rights.163 The most important expression of those

principles is the ECHR which 47 European countries have already accepted. Through

the decades, more and more cases found their way to the ECtHR,164

157 BverfGE 74, 358; Polakiewicz, idem, pp. 47-48.

a fact that

demonstrates the magnitude of the achievement in the field of human rights.

158 G. S.-P. Katrougalos, “The influence of ECHR in internal legal order”, To Syntagma, 5, 2002 (in Greek). 159 Article 10, para. 2 of the Spanish Constitution. 160 See sub-chapter 1.1. 161 Case C-6/64 F. Costa vs. ENEL [1964] ECR 585, 593; case C-106/77, Amministrazione delle Finanze dello Stato vs. Simmenthal SpA [1978] ECR 629. Especially, regarding precedence over national Constitutional law see Internationale Handelsgesellschaft, supra note 8. 162 R. de Lange, “The European Public Order, Constitutional Principles and Fundamental Rights”, Erasmus Law Review, 1 (1) 2007, pp. 12-15. 163 D. Gomien, “The Strasbourg Court-the arbiter of human rights standards in Europe” in “The Challenges of a Greater Europe. The Council of Europe and democratic security”, Council of Europe Publishing, 1996, p. 71. 164 Greer, supra note 112, pp. 687-691. Also T. Koopmans, “Courts and Political Institutions. A Comparative View”, Cambridge University Press, 2003, pp. 84-91.

34

Alternatively, the EU, that started merely as an economic organization but

consequently expanded its actions in many fields of policy, therefore, inevitably, the

ECJ ruled upon cases including human rights.

This is probably the point where those two organizations of different structure

finally meet. Protection of fundamental rights is essential, an issue of constitutional

nature165 that is impossible to be excluded from the so-called European public order.

Widely-accepted fundamental rights encompass mandatory rules that parties have no

freedom to derogate from.166

Furthermore, another form of interaction could be observed in the formulation

of the criteria for accession to EU. According to article 49 TEU any potential EU

member state is obliged to respect the values that the EU is founded on and promote

them. The relevant values of article 2 TEU

The sources of mandatory rules may (also) be sought in

norms created at supra-national level, in the field of human rights the ECHR. In EU

level, even before and besides the embracement in the Treaties, the Court has

provided with many rulings that incessively and eventually accepted such rules of

supra-national level within the EU legal order.

167

Therefore it would not be exaggerative to say that the interaction among the two

supra-national legal orders (EU, Council of Europe) had already commenced as far as

human rights are concerned. The interaction described will be upgraded in the future

accession of EU to ECHR in the sense that the EU does not just accept the rules of the

ECHR as guiding principles, but want to actively participate therein. So what remains

is to examine to what extent this participation may occur.

represent the core of the Council of

Europe whose aim is the greater unity of Europe through the common heritage of the

countries that embodies their common thoughts and principles. It comes naturally that

those common principles are connected with the rule of law, democracy and respect

for human rights. Hence, the EU developed some standards for accepting new

member states similar to the ideological background of the Council of Europe.

The legal basis provided within the new TEU for accession to ECHR does not

simply set an obligation for the Union; it also establishes the vertical effects of such

an accession. Article 6, para. 2, section 2 TEU states:

165 L. F. M. Besselink, “A Composite European Constitution. Een Samengestelde Europese Constitutie”, Europa Law Publishing, 2007, p. 3. 166 C. Kessedjian, “Public Order in European Law”, Erasmus Law Review, 1 (1), 2007, p. 26. 167 Article 2 TEU, supra note 122.

35

“Such accession shall not affect the Union’s competences as defined in the Treaties.”

In further explaining the statement above, article 2 of Protocol 8 attached in

Lisbon Treaty clarifies the retaining stability in the competences of all actors by

dictating:

“The agreement (for the accession to the ECHR) referred to in Article 1 shall ensure that

accession of the Union shall not affect the competences of the Union or the powers of its

institutions. It shall ensure that nothing therein affects the situation of Member States in

relation to the European Convention, in particular in relation to the Protocols thereto,

measures taken by Member States derogating from the European Convention in accordance

with Article 15 thereof and reservations to the European Convention made by Member States

in accordance with Article 57 thereof.”

This provision demands a multiple interpretation, both from the EU and from

the member states point of view. Unlike the formulation of the relevant provision of

article 6, para. 1 TEU regarding the recognition of the EU Charter of Fundamental

Rights which states that the Charter shall not extend the competences of the Union,

the word “affect” is used in both para. 2 and its explanatory article 2 of Protocol 8.

The reason seems to be quite simple; while in the formulation of the EU Charter, the

actors involved in the field of human rights protection are the Union with its member

states. As EU primary law, the Charter is binding to all EU member states under the

principle of supremacy. Nevertheless as it is explicitly mentioned therein,168

The situation is different when it comes to the accession of EU to the

Convention. A possible accession may affect both the relations of the Union with its

member states under the ECHR law and those of the Union with the Convention

itself. Therefore a more general term was used in the formulation of para. 2. The word

“affect” is interpreted in a more balanced way; neither restrict, nor extend EU

competences.

the

Charter shall not restrict human rights as are recognized by the Constitutions of the

member states. The member states did not seem to intend to transfer powers to the

Union in this particular field and as a result extend its competences.

168 Article 53 of the EU Charter of Fundamental Rights.

36

An issue that should be addressed first is what accession may change from a

legal point of view. In terms of legal consequences, EU will become a party to the

ECHR and submit its sui generis therein, despite the participation of all its member

states to the Convention. The jurisdiction of the Strasbourg Court extends to all

matters concerning the interpretation and application of the Convention and its

Protocols;169

It is commonsense that the accession of EU to the Convention will bring an

institutional novelty from the viewpoint that an international organization will for the

first time accede. In order to be able to control possible aberrations, the EU

lawmakers punctuated the concept of the special characteristics of the Union.

in other words it indicates revision of domestic legislation in cases of

human rights violations. Translated in terms of EU's accession, it involves revision of

the EU legislation and acts of its institutions. However, on the ECJ side, there is risk

that this eventuality would not be appreciated because of the ECJ's exclusive

jurisdiction on the interpretation and the application of Union law.

170

A notable observation is the absence of an explanation of what the special

characteristics of the Union or what they consist of. One may think that are related

with the organization of the Union as described in the treaties, thus the powers of its

institutions as vested therein. The EU has been developed to an autonomous legal

order however based on the principle of transferred powers by the member states.

This contains the source of the Union competences, fields where the Union is entitled

to legislate. Furthermore, on the ground of legal autonomy, the widely accepted

principles of direct effect and supremacy contribute to the special nature of EU legal

order. The way those principles have been formulated confirm the nature of Union as

a branch of international law with some unusual, quasi-federal, blossoms.

171

Another concept of EU special characteristics could be tied up with its system

of judicial protection. In particular, EU accession to the ECHR must not jeopardize

the interpretative authority of the ECJ regarding Union law. To maintain uniformity in

the application of European Union law and to guarantee the necessary coherence of

the Union’s system of judicial protection, it is therefore for the Court of Justice alone,

in an appropriate case, to declare an act of the Union invalid.

172

169 Article 32 ECHR.

170 Also expressed in article 1 of Protocol 8 of the Lisbon Treaty. 171 B. de Witte, “Direct Effect, Supremacy and the Nature of the Legal Order” in P. Craig, G. de Burca, “The Evolution of EU Legal Order”, Oxford University Press, 1999, p. 210. 172 Case C-314/85 Foto Frost [1987] ECR 4199.

37

The Union’s special institutional structure as a supranational organisation is

reflected to its horizontal impact. Geographically the EU covers 27 out of the 47

ECHR members that represent different legal systems and a population of over 500

million citizens, almost 5 times more than the most populated ECHR member, Russia.

Therefore, the Union shall have a special treatment under the legal umbrella of the

Convention on the ground of its special status.

A core element that describes EU in internal and external actions is that of

competences. Article 3 TFEU provides the Union with exclusive competences in

some domains wherein only the Union has jurisdiction, thus exclusive competences

comprise the peak of EU legal autonomy. The catalogue of article 3 is restrained in

the fields of the custom union, the establishing of the competition rules necessary for

the functioning of the internal market, monetary policy for the Member States whose

currency is the euro, the conservation of marine biological resources under the

common fisheries policy and common commercial policy.

Beyond dispute, even in those strict EU fields of policy the protection of human

rights shall be ensured. However, the authority to judge upon EU law matters is the

ECJ; the ECJ will remain the sole Supreme Court adjudicating on issues relating to

EU law and the validity of the Union's acts.173 Although in the past the ECJ had

modified its position after the development of ECtHR case law in issues related to

certain aspects of the right of privacy,174

The purpose of this approach is the protection of the EU autonomous legal order

that includes its own principles. Since its establishment the Union has been trying to

fulfill aims of economic nature by following a market oriented path and subsequently

legislating accordingly. Although the ECJ in recent cases

the ECtHR will not acquire the status of a

hierarchically superior court; no decision or judgement of the Strasbourg Court

adopting a different interpretation in human rights will certainly oblige the Union to

change its legislation especially in core issues like, for example, the common

commercial policy or the competition rules.

175

173 In this line the European Parliament, supra note 152, point 1, issue 6.

ruled in favour of

traditional rights over economic norms, the tendency has always been that

fundamental rights are not absolute and may be restricted under certain

174 Case C-88/99 Roquette [2000] ECR I-10465, para. 29 regarding the case law developed by ECtHR after the ECJ judgment of Hoechst. 175 Schmidberger, supra note 37; Omega, supra note 35.

38

circumstances.176

Nevertheless EU shall respect fundamental rights of the Convention. As has

been dictated by many ECJ decisions, ECHR is of special significance.

The Union does not give the impression of willing to defeature its

special characteristics, nor to reform its economic integration purposes and hence to

forfeit its exclusive fields of action to a mere human rights external reviewer.

177 The

protection of fundamental rights in Union is inspired by the concept that is given in

specific rights included to the Convention which sets the minimum standards to

provide European framework for protection of human rights.178 From this point of

view, the Strasbourg Court acquires a subsidiary role in externally reviewing

compliance with the Convention; the guarantee that the rights and freedoms set forth

therein lies upon the authorities of the members as major actors in human rights

protection.179

In addition, competences of the Union are related to human rights protection

policy

180

176 Case C-62/90 Commission vs. Germany [1992] ECR I-2575, para. 23; Bosphorus, supra note, 65, para. 21; Schmidberger, idem, para. 80.

in a more direct way both in internal and external level. In the first category

one may include article 19 TFEU that provides the Council with power to take actions

in combating discrimination. The Union may also legislate in issues regarding

equality among men and women at work (article 153, para. 1, issue i TFEU in

conjunction with article 157 TFEU) and maybe the most significantly the shared

competence that the Union enjoys in the ex-third pillar (article 4, para. 2, issue j

TFEU). Another direct internal fundamental rights competence is the one of article 7

TEU. According to this provision, the Union is bestowed the power to monitor

compliance of the member states with fundamental rights and apply sanctions in cases

of serious and persistent breaches. In external level, the fundamental rights policy of

the Union is guided by article 21 TEU which states among others that the Union shall

define and pursue common policies and actions in all fields of international relations,

in order to consolidate democracy, the rule of law and human rights. In practice the

177 Nold, supra note 10; case C-299/95 Kremzow vs. Austria [1997] ECR I-2629. 178 Wildhaber, supra note 44, p. 4; Lawson et al., supra note 48, p. xxviii. 179 The subsidiary role of the Convention supervisory mechanism has been confirmed in the Interlaken Declaration, PP 6, 19 February 2010. 180 A. J. Menendez, “Exporting rights: The Charter of Fundamental Rights, membership and foreign policy of the European Union” ARENA Working Papers, WP 02/18.

39

EU had already included human rights references in its international agreements

under the name of “human rights clauses”.181

There is no reason why the Union should not follow the interpretation of the

Convention when exercising its human rights policy. By obtaining a catalogue of

fundamental rights of its own, the Union codified and specified the general values of

article 2 TEU (and subsequently of article 21 TEU) into human rights that express

democracy and the rule of law. The EU Charter that embodies those values dictates in

article 53 that the meaning and scope of the rights of the Charter that correspond to

ECHR shall be the same as those laid down by the said Convention. Therefore the

values of the Union are substantially incorporated to the Convention that in any case

enjoys the reputation of being the most important instrument of fundamental rights in

Europe.

Conversely, the Union might obtain more powers in human rights issues after

the accession to ECHR. From the early period the accession debate included the

strengthening of the Union and its institutions regarding human rights protection, a

prospect that could empower the Union’s position in that particular field in Europe.

Under those circumstances, the role of the ECHR would be enervated.182

This may be in line with article 6, para. 3 TEU. This provision states that:

“Fundamental rights, as guaranteed by the European Convention for the Protection of Human

Rights and Fundamental Freedoms and as they result from the constitutional traditions

common to the Member States, shall constitute general principles of the Union’s law.”

The general approach that demonstrates the importance of human rights within

the EU legal system was kept in the post-Lisbon era. It clearly illustrates the

commitment of the Union in protecting fundamental rights. On the other hand, one

may say that it keeps providing the Court with the power to adjudicate based on

ECHR rights despite the existence of an EU bill of rights. This may lead to a

constructive role of the ECJ that could create rights out of their formal EU basis, the

Charter, based on principles of the Convention.183

181 B. Brandtner, A. Rosas, “Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice” European Journal of International Law, 9, 1998, p. 468.

Consequently, the power that the

182 Chalmers et al., supra note 111, p. 259. 183 Rutheil de la Rochere, supra note 74, p. 354; Besselink, supra note 165, p. 16.

40

ECJ kept may increase its importance and grant a central role in human rights issues

to the Court.

This indirect empowerment of EU would not find its member states consistent.

As directly stated in article 3, para. 6 the Union is based on the principle of conferred

competences. Should the member states determine to transfer powers regarding

fundamental rights protection to the Union, they could follow a different technical

path via a treaty amendment and subsequent inclusion of a relevant provision. This is

also the reason of the clarification clause of article 6, para. 1 regarding the EU Charter

and the Union competences.

Moreover, all EU member states are already signatories of the Convention

under special characteristics related to reservations made according to article 57

ECHR. Reservations apply where a state is unhappy about particular provisions, it

may, in certain circumstances, wish to refuse to accept or be bound by such

provisions, while consenting to the rest of the agreement.184

The reservations generally indicate the exercise of powers in human rights by

the member states. The theoretical possibility that the reservations of the EU member

states within the ECHR would have been abrogated with the EU accession would

have implied an indirect transfer of powers to the Union. The possibility of raising the

reservations on behalf of the member states as an expression of sovereignty still

exists; thus the revocation via a Union act (accession to ECHR) would displace the

member states from determining their respective policies.

From this perspective, the

member states of the Convention intend to adapt, up to a certain extent, the legal

instrument to their specific political distinctiveness so that the application of the

Convention within their respective national legal orders would be effortless.

The reasons described led to the formulation of article 6, para. 2 and article 2

Protocol 8 in such a way that clarifies the position of all actors involved in the

accession. Under the hierarchical distinction made by Polakiewicz,185

184 M. N. Shaw, “International Law”, Cambridge University Press, 6th edition, 2008, p. 914.

the ECHR does

not appear to have a clear status within the EU legal order. A basic concern of the

Union is evidently to guarantee a special status in the ECHR based on its institutional

characteristics. Theoretically, even under those circumstances, this would not be

185 Polakiewicz understands that the member states have implemented the Convention in five different ways: 1) the Convention as superior over all national law, the Constitution included, 2) the Convention as part of the Constitution, 3) the Convention as superior over domestic legislation, 4) the Convention with a rank of statutory law and 5) the Convention without internal formal validity. Polakiewicz, supra note 157, pp. 36-46.

41

problematic: the Union institutions shall respect the EU Charter of Fundamental

Rights which provides with protection of at least at the same level with the

Convention. Therefore, the ECHR shall be seen as a complementary, not an

alternative instrument that provides of an additional safeguard for human rights

protection.186

For the achievement of institutional balance, the development of the relations of

the two highest courts in their respective legal orders is essential. Recently, in an

attempt to contribute to the accession process, the ECJ favoured of the enactment of a

specific mechanism for ensuring that the question of the validity of a Union act can be

brought effectively before the Court of Justice before the ECtHR rules on the

compatibility of that act with the Convention.

In practice, an institutional balance of the two legal orders shall be kept

for the proper function of accession. The specific Union features must be respected;

nevertheless this should in no occasion lead to institutional excesses on behalf of the

Union.

187 In that sense the Union’s judicial

protection system, which consists of its special characteristics, would be sufficiently

preserved.188

An example of highest importance could be a claim of violation of the

Convention rooted in the European Union’s primary law, i.e. the treaties. Article 3,

Protocol 8 of the Lisbon Treaty gives an initiative by stating that:

“Nothing in the agreement referred to in Article 1 (accession agreement) shall affect Article

344 of the Treaty on the Functioning of the European Union.”

Article 344 TFEU practically forbids member states to submit a dispute

concerning the interpretation or application of the EU primary law to any method of

settlement other than those provided for in the treaties; it confirms that the sole and

indisputable interpreter of the EU treaties is the ECJ as derived from many provisions

therein (e.g. article 19 TEU, article 267 TFEU, etc.).

186 I. Pernice, R. Kanitz, “Fundamental Rights and Multilevel Constitutionalism in Europe”, WHI-Paper, 7/04, pp. 9-14; X. Groussot, L. Pech, “Fundamental Rights Protection in the European Union post Lisbon Treaty”, Fondation Robert Schuman/European Issue, No. 173, p. 12; Rutheil de la Rochere, supra note, 183, p. 353. 187 Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 5-5-2010, point 12. 188 Idem, point 9.

42

The logical outcome based on the above would be that the EU primary law

should be excluded from the ECtHR scrutiny mechanism. In the relevant example the

introduction of a mechanism that allows the Strasbourg Court to refer the case to the

ECJ189

On the other hand, the same special mechanism could be used for an

interpretation request of the Convention to the ECtHR on behalf of the ECJ. The main

advantage of the process is that the ECJ would be in position to have an authoritative

interpretation of the Convention to ground on for further development. Such a

mechanism is tightly connected to the nature of the Strasbourg Court as delivering

constitutional justice in the sense that the ECtHR will provide the ECJ and

subsequently all EU member states (even non-EU member states) with an original

interpretation of the conventional human rights.

would prevent possible disputes. This idea is in line with the concept of

Union’s special characteristics; decisions of the ECJ regarding EU law affect 27

countries while a possible application of another method of settlement may impinge

on policies that have been settled for years and under difficult circumstances. This

could be used as a “backdoor” to weaken the process of European integration.

Moreover, the establishment of an interpretative process would assist in

avoiding divergences and hence promote cohesion among the case-law of the two

courts. Total coincidence of views among the two courts would be an idealistic but

rather impossible result. As a minimum, the interpretative mechanism provides the

ECJ with a concrete starting point that assist a traditionally non-human rights court to

ground its decisions. This approach is also in line with article 53 of the EU Charter

that dictates a common interpretation with the Convention where possible.

A major disagreement regards the further postponement in delivering justice.

The workload of the Strasbourg Court is commonplace; a workload that increases

year by year. At first sight, the insertion of an interpretation reference mechanism

seems like delaying cases even more. Giving a second thought, the ECtHR will be in

a position to rule upon its actual field of specialization, human rights, in a way of

delivering guiding principles rather than solving a particular problem. This process

has dual benefits; the position of ECtHR as a constitutional court is re-defined (and

confirmed) while its guiding principles lead to the avoidance of future time

189 Statement of A. Benaki in European Parliament, Committee of Constitutional Affairs, Hearing, “The institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms”, Brussels, 18-3-2010, p. 4 (in Greek).

43

consuming relevant cases. Under those terms, the time issue will turn to be a positive

aspect for the ECtHR applicant.

It is of highest significance to understand that the ECJ is not a supreme national

court and shall not be confronted as one. Under the principle of supremacy the case

law of ECJ (as European law) overcomes national law; plus from a horizontal

perspective it influences 500 million people from different legal systems. Therefore

the establishment of an interpretation request mechanism should not be regarded as a

privilege granted to EU but rather than a further step towards the completion of

European public order.

3. Relations of the Union with the ECHR member states under the Convention

As the Strasbourg Court has ruled in its case law,190 in fields of state actions for

compliance with EU law obligations, the responsibility of the EU member states

exists only if the Union does not protect fundamental rights at least at a level equal to

the Convention, subsequently the EU member states are presumed not to have

departed from the requirements of the Convention if the EU passes the test of

“equivalent protection”. By applying this principle, the ECtHR received much of

criticism in the outcome of the Bosphorus case. One point was raised with regard to

the level of scrutiny of the ECtHR towards EU member states in relation to that

applied to non-EU member states. By transferring powers to the Union, the member

states are substantially exempted, to some extent, from scrutiny to which non-EU

members of the Convention are exposed, concerning the same state action.191

Inevitably, the situation will change after the EU accession to ECHR. The

rationale of the Strasbourg Court in all cases involving EU law, which led to the

establishment of special principles in its judgements, was simply the fact that as EU

was not a part of the Convention; the ECtHR had no direct competence in

adjudicating upon EU legal acts regarding their compliance with human rights. The

very reason why all cases were not declined inadmissible for jurisdictional reasons

dissembled, on one hand, the will of the Strasbourg Court to take them into account,

190 Particularly in Bosphorus, see sub-chapter 1.3. 191 Besselink, supra note 53. See also the concurring opinion expressed by six judges, para. 4, also the one expressed by judge Ress, para. 4.

44

on the other hand, an action of a member state, which results admissibility under

article 1 ECHR, was involved.

Under the accession to ECHR there will be no justified reason for the

continuation of the same attitude towards EU on behalf of the Strasbourg Court. By

acceding to the Convention, the European Union will have agreed to have its legal

system measured by the human rights standards of the ECHR. More importantly, the

Union will have the rights to participate in proceedings before the EctHR when EU

law is at stake; it will no longer be the case that the member states have to act as sole

respondents in lieu of the European Union.192

Therefore, there will no longer be a

need for them to be privileged in cases currently covered by the presumption.

3.1 The Union and its member states

The first question regarding the judicial relations among the Union itself and the

EU member states is with reference to responsibility. Statistically, most cases are

brought to the ECtHR by individual applicants under article 34 ECHR. Protocol 8 of

the Lisbon Treaty has already approached the issue. In article 1 it is stated that the

mechanisms necessary to ensure that proceedings are correctly addressed to member

states and/or the Union shall be elucidated in the accession agreement. Therefore the

possibilities of misinterpretation will be reduced.

The issue of correct respondent is vital when EU law is at stake. Apparently, the

Union would not be pleased about being in a position to defend itself for human rights

violations that the member states have committed. One could propose that the

criterion for distinguishing the correct respondent already exists in the treaties; the

separation of competences. Part one, title I TFEU is dedicated to classification of

competences. Hence, a possible solution would be to have the Union as responsible

for its exclusive competences (also in cases of action under the subsidiary

competences status) and both the Union and the respective member states in cases

involved shared competences.

This solution should not be acceptable for two main reasons. Firstly, from a

technical point of view, this distinction will directly transfer the power to the

Strasbourg Court to interpret the treaties when defining responsibility. When a case

192 Lock, supra note 99, p. 797, but see Besselink, ibid.

45

finds its way, the ECtHR will inevitably have to judge upon arguments regarding the

correct respondent. However, the allocation of responsibility between the EU and the

member states falls under the exclusive jurisdiction of the ECJ; an issue that has

already been specifically addressed in Opinion 1/91.193

The second reason is more substantial. Under the internal division of

competences, it is highly probable that the Union will be solely responsible for human

rights violations when legislating in issues of exclusive competence, for example in

the field of common commercial policy. Nevertheless, a violation deriving from an

EU piece of legislation is not existent in all cases. For cases where the member states

enjoy discretion up to a certain extent when implementing EU law (e.g. directives), it

is highly probable that the violation can be caused by the national measures. The

member state may have exercised its discretion in a way, which violated the

Convention and in such cases, it would be appropriate to hold the Member State

responsible.

Hence, the method of

distinguishing responsibility before the ECtHR on the ground of EU internal division

of competences will not be extremely effective.

194

Deriving from the above mentioned, the solution regarding the distinction of

responsibility between the EU and the EU member states can be found in the notion

of discretion. The member states have no discretion when implementing EU primary

law or EU regulations. Hence, it would be unfair for them to stand solely responsible

for just fulfilling their obligations under EU law (for example Matthews). Although, it

is clear that the human rights violations substantially originate from EU law in such

cases, the violation creates effects in the real world via an act of a member state. This

became quite clear in Bosphorus where the ECtHR asserted that the case fell into the

jurisdiction of Ireland within the scope of article 1 ECHR since the act that cause the

violation was committed by Irish authorities.

Therefore the EU internal division of competences will turn to be a

“shield” for the member states of the Union.

195

193 Opinion 1/91 [1991] ECR I-6079, Summary, para. 2. Also for this issue see B. Brandtner, “The “Drama” of EEA. Comments on Opinions 1/91 and 1/92”, European Journal of International Law, 3, 1992, p. 309.

Under this perspective, the member

states will always be in a defending position before the ECtHR, a fact that may lead to

194 T. Lock, “Accession of the EU to the ECHR: Who Would Be Responsible in Strasbourg?” in D. Ashiagbor, N. Countouris, I. Lianos (eds.), “The EU after the Lisbon Treaty”, Cambridge University Press, forthcoming, 2011. Also available at http://ssrn.com/abstract=1685785, p. 12. 195 See supra note 69.

46

unfair results especially when a particular member state had initially disagreed during

the legislative process for the adoption of the regulation.

On the contrary, the level of discretion that the member states enjoy when

implementing EU directives is very high. A directive shall only be binding as to the

result to be achieved, but leaves the member states free to legislate upon the form and

methods. In that sense the acknowledgement of violation’s root is more complicated;

does it derive from the form and methods that a particular member state chose or does

it exist in the very essence of the EU act so the member states could not avoid it?

In order for confusions to be avoided, where there might be any doubt about the

way in which responsibility is shared; an application may be brought simultaneously

against the Union and the member state.196 Furthermore, for finding the correct

responsible actor, a new mechanism may be initiated. In cases of an application

directed against a member state, the EU may join as a co-respondent and vice versa.

This mechanism, which is based on a proposal of CDDH,197

The establishment of the co-respondent mechanism will be much more effective

than the existing third party intervention of article 36 ECHR. Taking into

consideration that the judgement has no legal effects to the intervener, no obligation

would arise for the third-party to comply with it. In contrast, the co-respondent

participates as an equal litigant accepting all effects of the trial. Moreover, the co-

respondent mechanism shall be binding upon both the EU and the member states

when asked to enter a case, unlike the non obligatory third party intervention

instrument, in order for responsibilities to be assessed more precisely.

will also enhance the

idea of the EU legal autonomy as a special characteristic since the Union will be in

position to defend its legal acts more efficiently. The decision of the enactment of this

mechanism should lie upon either the EU or the member states, not attributed by the

Strasbourg Court. Under the latter, the ECtHR might enter the very substance of the

case and in some sense pre-judging it, by granting some sort of acquittal to the

respondent, when inviting another actor to participate as co-respondent.

According to the Convention, the ECtHR may only deal with the matter after all

domestic remedies have been exhausted (article 35, para. 1). This provision contains a

proof of the subsidiary role of the Strasbourg Court. A crucial matter is the exhaustion

of domestic remedies regarding EU law. In the cases involving an act of a member 196 European Parliament, supra note 173, point 9. 197 See above pp. 22, 23.

47

state, the respective domestic judicial review mechanism shall be used up to the last

possible level of appeal. However, as long as EU law is somehow involved, this will

not be enough under the purpose of article 35, para. 1 ECHR. As the EU as an

autonomous legal order has its own system of jurisprudence; the EU courts shall also

be incorporated in the concept of “domestic remedies”. An opposite argument would

contradict the very idea of accession under the view that the ECtHR should not

examine EU law cases if the ECJ has already decided as another international

investigation or settlement in the sense of article 35, para. 2, point b ECHR. The ECJ

has also declared that where an act of the Union is challenged, it is a court of the Union

before which proceedings can be brought in order to carry out an internal review before

the external review (of the Strasbourg Court) takes place.198

The process that most effectively connects the national and European legal

orders in terms of judicial review where individual are involved is the preliminary

ruling. As stated in article 267 TFEU, for the ECJ interpretation of EU acts, the

preliminary ruling is optional for regular national courts but obligatory for supreme

national courts where no other national remedies are provided. The question is now

whether the preliminary ruling process satisfies the domestic remedies concept of the

Convention. The reason that the Convention process was established in such a way

counts on the role of the Strasbourg Court as a subsidiary Court. After all domestic

judiciary has ruled upon a case the ECtHR comes to express a more specialized

opinion regarding human rights. Thus, all courts need to have spoken about the acts of

the legal order they represent before a case reaches the ECtHR.

Thus, the major concern of

the ECJ is not its classification as an international court, but rather not to be dispensed

when EU law is at issue.

199

Under the preliminary ruling rise, the ECJ has the opportunity to give a definite

ruling. An example could definitely be the case of Bosphorus where the Irish court

used the preliminary ruling so that the ECJ had the opportunity to review the

regulation as to its conformity with the European Union’s fundamental rights

200

198 Discussion document, supra note 188, point 11.

before the case was brought to the ECtHR. The problem that may rise pertain to the

situation where the national courts do not make a preliminary ruling reference to the

ECJ when assuming that no duty to make such a reference exists. Furthermore, in

199 Idem, point 9. 200 Bosphorus, supra note 195.

48

strengthening the argument, the ECJ itself has stated that a national court even of last

resort need not make a reference where it has established that the question raised is

irrelevant or that the Community provision in question has already been interpreted by

the Court or that the correct application of Community law is so obvious as to leave

no scope for any reasonable doubt.201

For that reason a special reference mechanism

Under those circumstances, the ECJ would not

be in position to adjudicate before the Strasbourg Court. 202 can be used for avoiding

institutional imbalances. Under the accession agreement, the EU legal order will

further integrate with that of the Convention for receiving external review for its legal

acts regarding compliance with human rights from a specialized court, as the

Strasbourg Court is. In the judicial protection system of the Union that consists of one

of its characteristics, the ECJ has the competence to rule upon issues with reference to

EU legal acts. In cases that the preliminary ruling process of article 267 TFEU will

not be followed, the Court will be substantially detoured. This parameter could be

problematic since it leads to effects on the powers of the Union’s institutions unlike

the statement of Protocol 8 of the Lisbon Treaty.203

Regarding applications addressed against an EU legal act directly, the respective

remedies should be exhausted. The concept of the Convention lies upon the idea of

substantial domestic remedies in terms of effectiveness, not remedies that would in

principle lead to inadmissibility. The individual complains procedure within the

Union’s legal system can be found in article 263, para. 4 TFEU. Under the Lisbon

Treaty the concept of acts that can be challenged by individual became broader than

before.

On the contrary, this special

reference mechanism will give to the ECJ the opportunity to adjudicate before the

Strasbourg Court so that the latter will take into account the ruling of the former as the

Court representing the European legal order.

204

201 Case C-283/81 CILFIT [1982] ECR 3415, para. 21.

This newly established provision, grants individuals with the opportunity to

challenge EU acts that are addressed to them or which are of direct and individual

concern to them and against regulatory acts which are of direct concern to them and

do not entail implementing measures. Nevertheless, the term “regulatory act” is not

202 See also p. 41. 203 In favour of this mechanism is R. Badinter in the speech of 25 May 2010 in the French Senate, available at http://www.senat.fr/europe/r25052010.html#toc1 (in French). 204 For the changes after Lisbon see S. Balthasar, “Locus standi rules for challenges to regulatory acts by private applicants: the new art.263(4) TFEU”, European Law Review, 35, 2010, pp. 542-550; Chalmers et al., supra note 182, pp. 414-415.

49

very clear; in brief, this contains Regulations and Decisions of general application.205

Both legal remedies shall be processed under the notation of article 256 TFEU.

In line with that provision, the General Court is competent at first instance to deal

with issues with reference to (among others) articles 263 and 265 TFEU. An appeal is

possible to the ECJ which adjudicates only on points of law. Consequently, the

remedies provided by the Lisbon Treaty could be regarded effective under the scope

of ECHR.

Plus, article 265 TFEU covers individual in situations where the EU legal bodies have

failed to act.

As far as the individual applications are concerned, a matter of highest

importance rises with reference to article 27 ECHR. Under this provision the single

judge process is introduced in the system of the Convention. A single judge may

either declare an individual’s application inadmissible or to forward it for further

examination. The decision of the judge is final. The purpose of the provision is to

reduce the workload of the Strasbourg Court by rejecting plainly inadmissible

applications. As long as it has been already agreed that a judge elected in respect of

the Union will be a member of the ECtHR;206 details as to when the EU judge serves

as single judge shall be clarified. The basic idea is that the judge shall not examine

any applications against the state in respect of which he or she was elected.207

Taking into account that the European citizenship is substantially related to that

of the EU member states, inevitably the EU judge will possess a citizenship of one of

them. The issue is whether that judge will be able to adjudicate applications against

the member state of his origin or even against another EU member state within that

process. For example, if the judge elected on behalf of the Union is German,

apparently he will not examine any applications against EU as a single judge on the

basis of non examination of applications against the member in respect of which the

Hence,

a first observation is that the EU judge should not sit as a single judge in applications

against EU.

205 The debate regarding the concept of the term “regulatory act” is very extensive. See also M. Dougan, “The Treaty of Lisbon 2007: winning minds, not hearts”, Common Market Law Review, 45, 2008, pp. 617-703; J. Bast, “Legal Instruments and Judicial Protection” in A. von Bogdandy and J. Bast (eds.), “Principles of European Constitutional Law”, Beck, 2nd edition, 2010 pp. 396-397; A. Turk, “Judicial Review in EU Law”, Edward Elgan, 2009, pp. 168-169; A. Dashwood, A. Johnston, “The institutions of the enlarged EU under the regime of the constitutional treaty”, Common Market Law Review, 41, 2004, pp. 1481-1518. 206 Council of Europe, Press Release, supra note 138. 207 Factsheet, supra note 142, p. 2.

50

judge was elected. But when applications against Germany are at stake, two

possibilities could be seen; either examining it on the ground of EU autonomy and the

impartiality and independency as principles discerning judges or not examining under

the inevitable connection with his country of origin which may prevent him from

being objective.

The examination by the EU judge of applications against his own country of

origin should not be an acceptable solution. Under different circumstances, the

principle dictating that the judge shall not examine any applications against the state

in respect of which he or she was elected will be totally violated in its substance. The

purpose of this principle was not simply to exclude examination of certain

applications by certain judges on the basis of a typical citizenship relation between the

citizen and the state but more to establish a strong substantial rule that enriches

objectivity of a brand new procedure of the Strasbourg Court.

In that sense, objectivity is mostly achieved by excluding the EU judge from

examining applications against his own state of origin. This is implied from the rather

unique perception of EU citizenship. Citizenship of the Union could definitely be

incorporated to the notion of special characteristics that shall not be affected from

accession. This idea of special characteristics must not be solely interpreted from the

perspective of Union’s principles, but also from those of the ECHR in order for the

institutional balance and thus integration of the two legal orders to be achieved.

Therefore, an exception of the EU judge shall be forwarded regarding the applications

that he has no competence to rule upon under the single judge procedure; applications

against his country of origin.

Regarding the possibility of examining applications against another EU member

state, the situation is rather explicit. Continuing the example described above, an EU

elected judge to the ECtHR of German origin could examine a case directed against

another member state e.g. Greece. The reason of lack of objectivity cannot be

extended in such cases where the strong connection of citizenship between the state

and the citizen does not exist. The idea that the EU is a Union of states should not be

subject to such a broad interpretation that identifies the Union with its states.

Therefore, the principle of legal autonomy of the Union must prevail so that the EU

judge shall not been exempted from examining cases against other member states.

A more complex issue arises with reference to inter-state cases. Aside from

individual complaints the Convention also provides for complaints brought by state

51

parties under article 33 ECHR. The question is whether after accession of the Union

inter-state complaints should be excluded as far as the member states and the Union

are concerned. This issue creeps a deeper conflict of exclusive jurisdiction between

the ECJ and the ECtHR.

On one hand, it is recalled that EU member states are prohibited from

submitting disputes to any other method of settlement other than those provided for in

the treaties (article 344 TFEU); a process that should be strictly protected from any

misinterpretation resulting from accession.208 Article 7 TEU includes a specific

procedure in cases regarding serious breaches of EU values by a member state which

eventually embrace human rights. In addition, the position of the European Parliament

contributes to the argumentation by stating that the member states should undertake,

at the time of accession to the ECHR, with respect to one another and in their mutual

relations with the Union, not to bring interstate applications concerning an alleged

failure of compliance pursuant to article 33 of the ECHR when the act or omission in

dispute falls within the scope of Union law.209

Politically speaking, the possibility of including inter-state cases among EU

member states and EU before the ECtHR could be abused. Since the early 90’s,

euroscepticism has been increased to a quite important ideology within the European

political debate.

For the purpose of those cases, article

259, para. 1 TFEU provides the member state with the opportunity to bring a case

before the ECJ regarding non compliance of another member state with the treaties;

under article 263, para. 2 TFEU the ECJ may deal with challenges against legal acts

of EU institutions while article 265, para. 1 TFEU give the right to open cases for

failure to act.

210

208 Article 3 of Protocol 8 of the Lisbon Treaty, see p. 42.

Recent example of expression of euroscepticism regarding

European integration in human rights may be seen in the opt-out protocol (Protocol 30

of the Lisbon Treaty) of the EU Charter of Fundamental Rights signed by the UK and

Poland. From this standpoint, eurosceptics in governance of certain member states can

persistently challenge EU before a specialized human rights court like the Strasbourg

Court for possibly getting a positive ruling which may be used for further opposition

to European integration.

209 European Parliament, supra note 196, point 8. 210 R. Harmsen, M. Spiering, “Euroscepticism and the Evolution of European Political Debate” in R. Harmsen, M. Spiering (eds.), “Euroscepticism: Party Politics, National Identity and European Integration”, Rodopi B.V., 2004, p. 13.

52

On the other hand, the exclusive jurisdiction of the Strasbourg Court derives

from article 55 ECHR. The provision prohibits the High Contracting Parties from

availing themselves of treaties, conventions or declarations in force between them for

the purpose of submitting a dispute arising out of the interpretation or application of

the Convention to a means of settlement other than those provided for in the

Convention. Therefore, it mostly seems that the ECHR parties have contracted out of

the right to bring cases before another type of jurisdiction regarding issues that fall

under the Convention.211

As by accession the Union will become a High Contracting Party to the

Convention, hence the legal position under ECHR law would be that the ECHR

member states (including EU member states) are entitled to bring a case against EU.

Any opposite opinion in the sense of excluding the possibility of an inter-state case

between the EU and its member states leads to substantial elimination of the principle

of collective enforcement which is fundamental in ECHR law. Nevertheless, article

55 ECHR itself provides the Convention members with the right to make exceptions

under a special agreement. In practice, the parties may waive the ECtHR jurisdiction

and seek for the opportunity to have the dispute decided by another forum; but this

willingness shall be proven in an agreement. Thus this matter turns to be internal

between the EU and its member states. They would have to conclude a special

agreement explicitly referring to the ECHR stating that the Convention will be

interpreted by the ECJ in cases between the member states or between a member state

and the EU. Therefore, the exclusive jurisdiction of the ECJ will be preserved and at

the same time, will be in compliance with the requirements of the Convention.

212

3.2 The Union and non-EU member states of the Convention

211 C. J. Tams, “Enforcing Obligations Erga Omnes in International Law”, Cambridge University Press, 2005, p. 286. A different view is expressed by Y. Shany who concludes that “article 55 was drafted mainly with a view of preventing invocation of the Convention before other judicial bodies” and continues that “there is no evidence that the drafters contemplated blocking adjudication before external judicial or quasi-judicial bodies”. Y. Shany, “The Competing Jurisdiction of International Courts and Tribunals”, Oxford University Press, 2003, p. 190. For a comparative function of article 55 ECHR before and after the enforcement of Protocol 11 ECHR see T. Lock, “The ECJ and the ECtHR: The Future Relationship between the Two European Courts”, The Law and Practice of International Courts and Tribunals, 8, 2009, p. 393. 212 Lock, idem, p. 395.

53

Accession to ECHR will not only vitally affect the relations among the EU and

its member states, but raises potential judicial conflicts between the Union and the

other mambers of the Convention under its legal system. As a High Contracting Party,

the Union may have applications addressed against, before the ECtHR. The question

here is how those judicial issues will be dealt from an ECHR standpoint.

For entering the Union, the candidate countries need to make progress on the

ground of meeting the requirements for membership, most importantly the

Copenhagen criteria one of which is the ability to take on the obligations of

membership, including adherence to the aims of political, economic and monetary

union and the administrative capacity to effectively apply and implement the

acquis.213 The concept of the EU acquis includes the Union treaties as well as

legislation and decisions adopted pursuant to the treaties and the case law of the

ECJ.214 Therefore, countries negotiating their membership to the Union should

implement to a large extent EU law.215

The “European family” welcomes every European state that respects and

promotes its values according to article 49 TEU; theoretically all members of the

ECHR may apply for EU membership. Currently Turkey, Croatia, Iceland, the Former

Yugoslav Republic of Macedonia (FYROM) and Montenegro, all ECHR members,

are official candidates for acquiring EU membership, while Serbia and Albania have

already applied. Hence, the countries mentioned need to follow the Union acquis a

fact that may bring conflicts with the Union in terms of human rights violations.

The main problem addressed is that the candidate member states have no access

to the ECJ. It is apparent that the relevant articles of TEU are directed to EU member

states with no further reference to candidates; for example the preliminary ruling

process of article 267 TEU is particularly focused on the national courts of full

member states. In that sense there is no possibility for the candidate EU member

213 For its scope see C. Delcourt, “The Acquis Communautaire: Has the Concept Had Its Day?”, Common Market Law Review, 38, 2001, p. 829. 214 European Commission, Enlargement, How does a country join the EU?, available at http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a_country_join_the_eu/negotiations_croatia_turkey/index_en.htm. See also D. Kochenov, “Why the Promotion of the Acquis Is Not the Same as the Promotion of Democracy and What Can Be Done in Order to Also Promote Democracy Instead of Just Promoting the Acquis”, Hanse Law Review, 2, 2006, p. 173. 215 A limit is put by article 20, para. 4 TEU stating that “acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union”.

54

states to reach the Court and as a result, the judicial institutions representing the legal

order of EU will be skipped.

Under those circumstances, cases where EU law is at stake may reach the

Strasbourg Court without the ECJ having the opportunity to rule upon. A possible

solution could be the application of the two new mechanisms mentioned above; the

reference to ECJ and the co-respondent mechanism. The idea of the Strasbourg Court

referring to ECJ cases where non EU member states or EU are involved (at least not

as both parties) may appear awkward at first glance. From one side, the ECJ will be

empowered since it will be competent on adjudicating upon issues under a

geographical expansion of its scope. On the other hand, the purpose to preserve the

EU legal autonomy through adjudication of its courts in cases regarding EU law

should prevail. Under those circumstances the ECJ will be in position to express its

position as the Supreme Court at EU level before the Strasbourg Court will deal with

the issue.

Furthermore, the reference process may be used as a tool for familiarizing the

official candidate states with the EU judicial procedures. It is commonsense that the

technical prerequisites for EU membership aim to formulate institutions of the

candidate states in such a way that could be in a better position in applying and

implementing EU law, the case law of the ECJ included. By acquiring the opportunity

of participating in formal process before the ECJ, the candidate states will be

identified with the main judicial body of the Union, in the most important issue, the

protection of fundamental rights.

The model of co-respondent before the Strasbourg Court in cases targeting EU

law shall be applied as well so that the Union will have the chance to participate more

actively in proceedings. The background of the mechanism’s idea lies upon perplexity

regarding the correct actor responsible when EU member states actions are involved

so that judicial grievances will be avoided. At the status of the candidacy for EU

membership, states do implement EU legal acts so that the possibility of violating

human rights through implementation does exist. Therefore, the situation of candidate

states does not differ much in comparison with that of EU member states regarding

responsibility. From this perspective, the co-respondent mechanism will upgrade the

prospects in finding who is truly responsible.

Conclusion

55

The process of accession, a historic achievement for the protection of human

rights in Europe,216

After the completion of accession all EU legal acts may be externally reviewed

for conventional human rights compliance by the Strasbourg Court. This perspective

sets the basis for the new relations between the two major Courts in Europe, the ECJ

and the ECtHR. The soft law approach that proposes the non institutionalization of the

courts

has already started. Finally a big step in further integration of

Europe has been taken towards the completion of the European public order,

inextricable part of which the protection of fundamental rights is. This contribution

has attempted to give an overview of some of the most problematic and contentious

issues of the accession by the EU to the ECHR. In order for the accession to be

constructive, a harmonious and efficient interplay between the EU and the ECHR

legal orders, including the national ones, is essential; this can be achieved under

institutional balance. This view has been elaborated in official EU legal documents as

well as opinions expressed by officers including, most importantly, the new article 6

TEU and the Protocol 8 of the Lisbon Treaty.

217

As the Convention will remain the minimum fundamental rights protection

provider in Europe, the EU Charter of Fundamental Rights continues in further

elaborating human rights based on that ground. Given the fact of the constitutional

member states traditions that become apparent also in the Convention, with the

addition of those of non-EU members, all “pillars” that compose fundamental rights

protection in Europe will be enclosed. In that sense the idea of a Composite European

Constitution (in the field of fundamental rights) that Professor Besselink has

envisaged

will simply postpone the emergence of a conflict. One way of establishing

the new relations of the Courts is through the enactment of the two new mechanisms

(reference and co-respondent) that distinguish the roles between them. Under the

same principle of institutional balance, the Union shall be equally represented in

bodies of the Convention, especially in the ECtHR taking into account its special

characteristics as the first ECHR member that lacks the status of the state.

218

turns to be closer than ever.

216 Speech of Commissioner B. Ferrero-Waldner in the Warsaw Summit of 17 May 2005. 217 European Parliament, supra note 209, point 15. 218 Besselink, supra note 183.